Opinion
Index No. 813958/2017
07-22-2021
Donald PAPAJ, Individually and as Appointed Agent and Attorney in Fact, on behalf of Dana Papaj, a Person Under a Disability, Plaintiff, v. COUNTY OF ERIE, Town of Grand Island, Edward J. Kuebler III, Michelle L. Kuebler and Elizabeth A. Hladczuk, Defendants.
HOGAN WILLIG, PLLC, Steven M. Cohen, Esq., Of Counsel, Ryan C. Johnson, Esq., Of Counsel, William J. Gerken, Esq., Of Counsel, Attorneys for Plaintiff LIPPES MATHIAS WEXLER FRIEDMAN, LLP, Jennifer Persico, Esq., Of Counsel, Eric Soehnlein, Esq., Of Counsel, Attorneys for Defendant, County of Erie GOLDBERG SEGALLA, LLP, Julie P. Apter, Esq., Of Counsel, Attorneys for Defendant, Town of Grand Island PILLINGER MILLER TARALLO, LLP, Maria T. Mastriano, Esq., Of Counsel, Attorneys for Defendants, Edward J. Kuebler, III and Michelle L. Kuebler NORMAN J. MATTAR, P.C. James F. Granville, Esq., Of Counsel, Attorneys for Defendant, Elizabeth A. Hladczuk
HOGAN WILLIG, PLLC, Steven M. Cohen, Esq., Of Counsel, Ryan C. Johnson, Esq., Of Counsel, William J. Gerken, Esq., Of Counsel, Attorneys for Plaintiff
LIPPES MATHIAS WEXLER FRIEDMAN, LLP, Jennifer Persico, Esq., Of Counsel, Eric Soehnlein, Esq., Of Counsel, Attorneys for Defendant, County of Erie
GOLDBERG SEGALLA, LLP, Julie P. Apter, Esq., Of Counsel, Attorneys for Defendant, Town of Grand Island
PILLINGER MILLER TARALLO, LLP, Maria T. Mastriano, Esq., Of Counsel, Attorneys for Defendants, Edward J. Kuebler, III and Michelle L. Kuebler
NORMAN J. MATTAR, P.C. James F. Granville, Esq., Of Counsel, Attorneys for Defendant, Elizabeth A. Hladczuk
Timothy J. Walker, J.
Defendant, Town of Grand Island ("Town"), has applied for summary judgment, pursuant to CPLR 3212, dismissing the Complaint and all cross-claims against it (NYSCEF Doc. 209; Motion No. 8) (all submissions related to it consist of Docs. 209-228; 365-367; and 410-432).
Defendant, Elizabeth Hladczuk, has applied for summary judgment, pursuant to CPLR 3212, dismissing the Complaint and all cross-claims against her (Doc. 288; Motion No. 9) (all submissions related to it consist of Docs. 288-295).
Defendant, County of Erie ("County"), has applied for summary judgment, pursuant to CPLR 3212, dismissing the Complaint and all cross-claims against it (Doc. 270; Motion No. 10) (all submissions related to it consist of Docs. 270-287; 296; 329-352; 361-362; and 450).
Defendant, Michelle L. Kuebler has applied for summary judgment, pursuant to CPLR 3212, dismissing the Complaint and all cross-claims against her (Doc. 368; Motion No. 13) (all submissions related to it consist of Docs. 368-389; 439-449; and 455-461).
Plaintiff, Donald Papaj, has applied for partial summary judgment, as against Defendant, Edward J. Kuebler, III, pursuant to CPLR 3212, on the issue of negligence. Plaintiff has also applied to dismiss the First and Third Affirmative Defenses of Mr. Kuebler's Answer, pursuant to CPLR 3211(b) (Doc. 390; Motion No. 14) (all submissions related to it consist of Docs. 390-409; 433-438; and 451-454).
BACKGROUND
This action for personal injuries arises out of a motor vehicle/pedestrian accident that occurred on June 13, 2017, at approximately 8:00 p.m., in the Town of Grand Island, New York ("Incident") (Doc. 3, p. 2).
At the time of the Incident, Dana Papaj was walking her dog on the west shoulder of East River Road, a/k/a County Route 11, between Riverwoods Drive and Whitehaven Road, when she was struck by a Dodge Ram pickup truck operated by, and registered to, Defendant, Edward J. Kuebler, III ("Kuebler Vehicle") (Id. ). Mr. Kuebler left the scene of the Incident, but a neighbor, non-party, Henry J. Sadowski, witnessed it and called for emergency help (Doc. 221). The Incident was captured on a surveillance camera installed on the house located at 2560 East River Road, the location of the Incident ("Video"; Doc. 308). The court has viewed the Video.At the time of the Incident, Mr. Sadowski resided at 2580 East River Road (two residences north of the Incident) (Doc. 98). Mr. Sadowski was standing on his patio when he observed Ms. Papaj walking her dog, and he confirmed that when the Kuebler Vehicle struck her, she was not standing in the road (Id. ).
New York State Troopers arrived at the scene of the Incident, conducted an investigation, and completed an accident reconstruction of the Incident (the "State Incident Reconstruction Report"; Doc. 225). Dana Papaj was transported by ambulance to Erie County Medical Center, where she remained as an admitted patient for approximately seven (7) months (Doc. 404, p. 13).
East River Road was originally owned and constructed as a New York State ("State") roadway, but its jurisdiction vested with the County in approximately 1980, and it has continuously been under the County's jurisdiction ever since (Doc. 226, Ex. B, p. 2).
The location of the Incident at East River Road is a two-lane roadway constructed of asphalt that generally travels in a northeast to southwest direction. There is one northbound lane and one southbound lane, separated by a double yellow line. There are also shoulders on both sides of the roadway that are depicted by a solid white (fog) line (Id. ). According to the State Incident Reconstruction Report (Doc. 225), the overall width of the roadway from edge of pavement to edge of pavement is approximately 25 feet, 6inches; the northbound and southbound lanes are each approximately 9 feet wide; and the north shoulder's asphalt is approximately 2 feet, 9 inches wide, with approximately 1feet, 4inches of loose gravel beyond the asphalt (Doc. 226, Ex. B, p.2).
The posted speed limit at the time of the Incident was 35 miles per hour ("mph") (Id. ).
According to traffic volume counts, last taken by the New York State Department of Transportation ("NYSDOT") in 2014, northbound traffic for this section of East River Road has an estimated average annual daily traffic count of 461 vehicles, and southbound traffic for this section of the road has an estimated average annual daily traffic count of 470 vehicles. These volume counts illustrate that the road has approximately ninety (90) maximum total vehicles for both the northbound and southbound directions occurring in an hour, which otherwise translates to there being approximately 1.5 vehicles per minute traveling on East River Road during the busiest hour. The NYSDOT classifies East River Road as a "Major Collector" (Id. ; Doc. 226, Ex. C).
DISCUSSION
Defendant Town's Motion
Plaintiff's claim against the Town "centers around the municipality's failure to request a permit to construct a sidewalk (if it was deemed necessary) and/or its failure to install a sidewalk along East River Road in areas under the direct control of [the Town]" (Doc. 422, ¶10).
It is undisputed that East River Road is not a Town road. Rather, it is owned, controlled and maintained by the County (Doc. 215, p. 14; Doc. 216, pp. 60-61).
Duty of Care
Plaintiff's claims against the Town are grounded in negligence. It is well settled in New York that in order to establish a prima facie case of negligence, a plaintiff must submit evidence showing: (i) the existence of a duty on defendant's part to plaintiff; (ii) a breach of such duty; and that (iii) such breach was a substantial cause of the resulting injury ( Chunhye Kang-Kim v. City of New York , 29 AD3d 57, 59 [1st Dept 2006] [internal citations and quotations omitted]).
When a negligence action is brought against a town in connection with a road, summary judgment may be granted where the evidence establishes that the road wherein an accident occurred is not the town's responsibility ( Cannarozzo v. County of Livingston , 13 AD3d 1180 [4th Dept 2004] ; see also, Spain v. Cairo , 145 AD2d 761 [3rd Dept 1988] [summary judgment granted to town where evidence established that the town did not design, build, own, maintain, inspect or in any way control the road]). With respect to the Incident, the Town does not own East River Road and never assumed any responsibility for its maintenance and/or upkeep (Doc. 215, p. 14; Doc. 216, pp. 60-61).
There may be no finding of a breach of a duty of care in designing or maintaining a road where the municipality does not own or control it ( Ossmer v. Bates , 97 AD2d 871, 872 [3d Dept 1983] ["It is well established that before a defendant may be held liable for negligence, it must be shown that the defendant owes a duty to the plaintiff. In the absence of a duty, there is no breach and without a breach there is no liability"] internal citations omitted]).
The Town does not have jurisdiction to install sidewalks on East River Road, without the County's consent (Doc. 216, pp. 60-61, 184-187). It is the County's ultimate determination as to whether a sidewalk is warranted. Indeed, on January 18, 1989, John C. Loffredo, then County Commissioner of Public Works, issued a memorandum to Richard Tobe, then County Commissioner of the Department of Environment and Planning, which stated, in relevant part, that "no such sidewalk shall be built along any county road until the county superintendent of highways shall have made his consent thereto" (Doc. 412). Accordingly, the Town cannot be found liable to the Plaintiff for any failure to design and/or maintain a road it does not own or control, and cannot be held liable for the failure to maintain it in a reasonably safe condition "unless it affirmatively undertakes such a duty" ( Miller v. County of Suffolk , 163 AD3d 954, 957 [2nd Dept 2018] ).
Similarly, while a municipality has a non-delegable duty to the public to construct and maintain its roads in a reasonably safe condition, it is afforded qualified immunity from liability arising out of a highway planning decision ( Enker v. County of Sullivan , 162 AD3d 1366 [3d Dept 2018] ); (Friedman v. State , NY2d 271 [1986]). Qualified immunity would not apply if the opposing party can demonstrate that the highway planning decision was inadequate or not based on a reasonable traffic plan (Id. ). Thus, Plaintiff bears the burden of demonstrating that a sidewalk was warranted in the area of the Incident, based upon sound engineering principles ( Enker , 162 AD3d at 1367-1368 ). Plaintiff has failed to do so in this case.
Plaintiff has offered no evidentiary proof to counter the opinion of the Town's expert engineer, Steven Schneider, P.E., Mr. Schneider opined, inter alia , as follows:
At our site visit, we observed that there are no sidewalks along East River Road. Based on engineering standards, sidewalks should be continuous if they exist. The Federal Highway Administration, a division of the United States Department of Transportation, states the following in their publication No. FHWA-HRT-05-101: "Sidewalks should be regarded as a transportation system, not unlike roadways and railways, which is connected and continuous. They should not be sporadically placed where convenient, but instead should be provided consistently."
In this case, sidewalks do not exist in the area. Therefore, there should not have been random and discontinuous sidewalks along East River Road. Random and discontinuous sidewalks can create more problems for pedestrian access and safety (Doc. 226, p. 4) (emphasis in original).
...
It is highly evident from our investigation that the cause and result of this accident was in no part due to negligence by the Town of Grand Island. We note that not only are there no obvious design issues or concerns with the roadway or speed limit, but East River Road is a County-owned road which the Town of Grand Island plays no role in designing or maintaining. Additionally, it is the NYSDOT that is responsible for determining the posted speed limit on the roadway.
Although the Town would be responsible for maintaining sidewalks if they were present, they were not. There are no sidewalks along East River Road in the vicinity. From an engineering and pedestrian safety standpoint, using Federal Standards, the lack of an accident history and because sidewalks should not be random and discontinuous, they are not warranted at this location. The Town did not have permission from the County to construct a sidewalk, and there were no issues pressing the Town to initiate constructing one. Not-to-mention, there would be physical challenges to constructing a sidewalk on East River Road due to its ROW restrictions (Id. , at pp. 5-6).
Notwithstanding the above, the Town may be liable to Plaintiff in the event Plaintiff demonstrates that, in the performance of its governmental functions, the Town owed Ms. Papaj a special duty, which it then breached ( McLean v. City of New York , 12 NY3d 194, 199 [2009] ). A special duty may be formed between an injured person and a municipality when the municipality violated a statutory duty enacted for the benefit of a particular class of persons (Id. ). To form a special duty through breach of a statutory duty, the governing statute must authorize a private right of action, which may be implied when (i) the plaintiff is one of the class for whose particular benefit the statute was enacted; (ii) recognition of a private right of action would promote the legislative purpose of the statute; and (iii) to do so would be consistent with the legislative scheme ( Sheehy v. Big Flats Community Day , 73 NY2d 629, 633 [1989] [internal citations and quotations omitted]).
Plaintiff contends that a special duty was created by § 35-2 of the 1963 Edition of the Town's Code. However, the court declines to consider this contention, because Plaintiff failed to include § 35-2 (or any portion of the purported 1963 Town Code) in the record.
In order to provide the parties with a complete record, had Plaintiff included copies of relevant portions of the 1963 Town Code in the record, the result would be the same.
According to Plaintiff, § 35-2 provides, as follows:
Sidewalks will be required along the entire street frontage of all major subdivision lots or parcels located in a sanitary sewer district. Such sidewalk shall be installed when the parcel is developed or at such time that the Planning or Town Board shall direct such sidewalk to be installed to accommodate pedestrian movement and public safety.
The statute does not discuss its purpose or intent, and there is no evidence that it was enacted for the benefit of a particular class of persons. Rather, it appears to have been enacted for the public in general, as opposed to a special class of persons, which is a pre-requisite to the formation of a special duty ( McLean , 12 NY3d at 203 [the requisite special duty or special relationship only exists if the statute made it clear that its enactment was intended for the plaintiff, and was not intended for the "public in general"]). At the time of the Incident, Ms. Papaj was not a member of a special class separate and distinct from the general public. Thus, the Town did not owe her a special duty.
Finally, other than Plaintiff's bare allegation that East River Road was defective for failing to have included sidewalks, the record is devoid of any defect in East River Road that was known to the Town. There is no documentation of any complaints or concerns made to the Town that would require it to report to the County.
In light of the foregoing, no duty has been created on the part of the Town that would establish liability on its part. Thus, the Town's application for summary judgment is hereby granted.
The parties’ respective additional contentions are addressed below to provide them with a complete record.
Lack of Foreseeability/Intervening Act
When an intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from defendant's conduct, it constitutes a superseding cause, which breaks the causal nexus between defendant's conduct and the injury ( Kush v. City of Buffalo , 59 NY2d 26 [1983] ).
The Town contends that the Incident was caused by the Kuebler Vehicle having unexpectedly left the road, striking Mrs. Papaj while she was standing on grass on the side of the road with her dog. Thus, the Town contends that the Kuebler Vehicle leaving the road constitutes a new, independent cause of events leading to Mrs. Papaj's injury, which absolves the Town of any liability associated with the absence of a sidewalk.
The Court disagrees that a vehicle leaving a road and striking a person standing near the edge of the paved surface, where no sidewalk is present, is extraordinary or unforeseeable. Rather, it is a question for the jury. This question, however, shall not be presented to a jury, because the court previously determined that the Town did not breach a duty of care to Ms. Papaj.
Whether the Existence of Sidewalks Would Have Prevented the Incident
Plaintiff contends that had sidewalks existed on East River Road, the Incident would not have occurred. Such contention, however, is based on speculation.
The investigating officer, Trooper Kyle Folts, concluded that Mr. Kuebler's actions were the primary cause of the Incident (Doc. 225, p.8). Nowhere in any of the accident reports or investigative reports was any determination made that the lack of a sidewalk caused and/or contributed to the happening of the Incident. Thus, positing that a sidewalk may have prohibited the Incident from occurring is pure speculation, as the Kuebler Vehicle, having left the road, could have reached a sidewalk. Such "what if" contentions should be rejected (see, Gordon v. American Museum of National History , 67 NY2d 836 [1986] [presenting possible scenarios of where evidence came from or how an accident could have been avoided is nothing more than pure speculation, insufficient to create any liability]).
Nonetheless, whether the existence of a sidewalk would have prevented the Incident is irrelevant vis a vis the Town, in light of the previous determination that the Town was not obligated to install a sidewalk in the vicinity of the Incident, and otherwise did not owe Ms. Papaj a duty of care.
Defendant Hladczuk's Motion
At the time of the Incident, Ms. Hladczuk was Mr. Kuebler's girlfriend and they lived together (Doc. 294, ¶4).
While Plaintiff contends that Ms. Hladczuk was on the telephone with Mr. Kuebler at the time of the Incident, thus distracting him while he was operating the Kuebler Vehicle (Doc. 290,¶28), Ms. Hladczuk denied that contention at her deposition (Doc. 292, pp. 32-35). She testified that she last communicated with Mr. Kuebler approximately two (2) hours before the Incident and that she did not communicate with him again until he arrived home after the Incident (Id. ).
It is undisputed that, at the time of the Incident, Ms. Hladczuk owned a vehicle ("Hladczuk Vehicle"); the Hladczuk Vehicle was insured by Allstate; Mr. Kuebler did not operate the Hladczuk Vehicle; and Mr. Kuebler owned the Kuebler Vehicle, which was separately insured with Geico (Id. , at pp. 22-23; Doc. 293, pp. 39, 52-54).
Ms. Hladczuk did not owe Ms. Papaj a duty of care. Rather, it was Mr. Kuebler's duty, as the operator of the Kuebler Vehicle, to see what should be seen and to exercise reasonable care in the operation of the Kuebler Vehicle to avoid the Incident ( Deering v Deering , 134 AD3d 1497, 1499 [4th Dept 2015] ).
Moreover,
[i]f a person were to be held liable for communicating a text message to another person whom he or she knows or reasonably should know is operating a vehicle, such a holding could logically be expanded to encompass all manner of heretofore innocuous activities. A billboard, a sign outside a church, or a child's lemonade stand could all become a potential source of liability in a negligence action. Each of the forgoing examples is a communication directed specifically at passing motorists and intended to divert their attention from the highway ( Vega v. Crane , 162 AD3d 167 [4th Dept 2018] ).
Ms. Hladczuk has made a prima facie showing of entitlement to summary judgment. Plaintiff has not opposed her application, and it is granted.
Defendant County's Motion
The Design and Maintenance of East River Road
Plaintiff has asserted numerous negligence claims against the County, all related to the design and maintenance of East River Road (Doc. 277, pp. 2-4). In sum, Plaintiff has asserted that the County failed to ensure that East River Road was wide enough, the speed limit was low enough, and the shoulder was wide enough (Id. ).
A municipality has a "nondelegable duty to maintain its roads in a reasonably safe condition" ( Friedman v. State , 67 NY2d 271, 286 [1986] ). The duty to properly maintain the roads extends to the shoulders of the roads ( Bottalico v. State , 59 NY2d 302, 309 [1983] ["In providing a roadway itself, the State has a duty to maintain it in a reasonably safe condition. [citation omitted]. A comparable duty exists when the State undertakes to provide a shoulder adjacent to the roadway. It must maintain the shoulder in a reasonably safe condition for the foreseeable uses of it"]). Accordingly, a badly deteriorated, unreasonably narrow shoulder may form the basis of municipal liability where the shoulder defect caused the injury at issue (see Auer v. State of New York , Claim No. 86167 (New York Ct. of Cl. 1998), citing Bottalico [State determined to be 80% at fault for accident where it failed to maintain the shoulder of the road "and the dangers inherent in such failure" resulted in a "badly deteriorated shoulder" and a "drop-offs of up to 3 inches within the shoulder"]) (Doc. 450, pp. 8, 14).
The "governmental function immunity defense" affords municipalities protection from liability regarding their decisions relating to highway design ( Turturro v. City of NY , 28 NY3d 469 [2016] ). Where a design defect is established, a municipality is not automatically required to make expensive changes because the standards of road design have changed since the road's original construction ( Hubbard v. Cty. of Madison , 93 AD3d 939 [3d Dept 2012] ). Where there is no history of accidents and where the county inherited the road from another municipality, the county is not required to make repairs (Id. ). However, where a municipality undertakes significant repairs, or there is a history of accidents, it undertakes responsibility for correcting defective or dangerous areas and may be liable for not doing so (Id. ). "Significant repairs" entail more than merely repaving or widening the road ( Id. , at 944 ).
The State initially built and operated East River Road, but abandoned it to the County, as of April 1, 1980. (Doc. 282, p. 86) While owned and operated by the State, East River Road underwent various maintenance from 1926 to 1976, and a curve reconstruction in 1965 (Id. ).
Since being transferred to the County, East River Road has undergone routine maintenance, including repaving and restriping, but it has not been reconstructed (Doc. 284, ¶¶ 9-10.). The County has repainted the lines on East River Road, changed the center line striping from partial barrier to full barrier, and added a white edge line (Doc. 282, p. 93). In September 2014, unidentified sections of East River Road were micro paved (Id. at pp. 110-14), which consists of "[a] very thin coating of asphalt that goes over the top of an existing asphalt surface" (Id. , at p. 99). In October 2014, an independent contractor retained by the County performed crack sealing on East River Road (Doc. 283, p. 138). East River Road was last striped in 2015 (Doc. 282, pp. 142-43; Doc. 283, pp. 70-71.).
A road is not required to be brought up to code unless it undergoes a full reconstruction, which would require the removal of all asphalt, down to the stone subbase (Doc. 282, pp. 102-103).
Prior to the Incident, the County was not aware of any pattern of accidents at or near the site of the Incident (Doc. 284, ¶ 11), nor was the County aware of any defective condition associated with the road at or near the site of the Incident (Id. , at ¶ 12).
East River Road's design is consistent with current design standards. At the time of the Incident, East River Road's shoulder measured 4 feet, 1 inch, consisting of 2 feet, 9 inches of asphalt paving and 1 foot, 4 inches of loose gravel (Doc. 280, p. 2; Doc. 226, pp. 3-4). The current applicable County design standard requires a four foot shoulder, while the State's guidelines require a two foot shoulder (Doc. 284, ¶14).
Similarly, there was nothing irregular about the transition between the shoulder of East River Road and the adjacent ground. The drop between the shoulder and the adjoining grassy area was 2.375 inches (Doc. 285, ¶ 9). Design standards do not require a warning for motorists until the drop off exceeds 3 inches (Id. , at ¶¶9-11;Doc. 282, p. 151).
In light of the foregoing, while it is undisputed that the County is responsible for maintaining East River Road (see Freidman, supra ), the County may not be found negligent in connection with such maintenance in the vicinity of the Incident, as a matter of law (see Hubbard, supra [no action for negligent design or maintenance of a road lies against municipality where there was no notice to the municipality of a two inch lip between the shoulder of the road and the adjoining area and the condition developed over time, and whether the road's curvature was a design defect was not attributable to the municipality because it inherited the road from another municipality]). Hubbard makes clear that only "a history of accidents or significant repairs and reconstruction" can trigger a duty to redesign the road ( Id. , 93 AD3d at 943 ).
In addition, the County may not be liable for negligently designing East River Road, because it did not design it; the State did; and the County assumed responsibility for maintaining East River Road after it was designed and constructed by the State.
Whether East River Road Was a Substantial Cause of the Incident
A municipality's duty extends only to the reasonable and safe maintenance of the road, not to preventing negligent or reckless drivers ( Turturro v. City of NY , 28 NY3d 469 [2016] ). Thus, "as long as the [road] is reasonably safe for those who obey the rules of the road, the duty of the municipality is satisfied" (Heins v. Vanbourgondien , 180 AD3d 1019 [2d Dept 2020] ).
The Incident was caused by Mr. Kuebler's negligence in the operation of the Kuebler Vehicle off East River Road into the adjacent grassy area. The facts and circumstances of this matter are similar to those in Sherman v. County of Cortland (18 AD3d 908 [3d Dept 2005] ), where a motor vehicle accident occurred when an automobile traveled off the right shoulder of the road into a drainage ditch and struck a utility pole. In rejecting the plaintiff's theory that the proximity of the culvert to the utility pole presented a dangerous condition, the court stated the following:
Although plaintiffs suggest that defendant may have breached its duty to follow prevailing state and federal standards and guidelines with respect to the width of the shoulder in the vicinity of where decedent's vehicle left the roadway, plaintiffs failed to proffer any link between that alleged inadequacy and the cause of the accident. As indicated, the pavement was dry and in good condition and there was no indication that decedent attempted to stop the vehicle before it left the road. "[I]n the absence of any competent direct or circumstantial evidence establishing that [defendant's] negligence ‘was a substantial cause of the events which produced [the] injury,’ plaintiff[s] failed to make a prima facie showing of proximate cause" ( Id. , at 911 ) (internal citations omitted).
(See also, Ball v. State , 106 AD3d 1248 [3d Dept 2013] [summary judgment granted to municipality where motorcycle drove off the right side of the roadway and struck a tree located ten (10) feet from the edge of the pavement; plaintiff's expert proof about the design of the shoulder and adjacent property rejected where the accident was found to be fully attributable to the driver's coughing fit]).
Mr. Kuebler admitted during his deposition that, at the time of the Incident, he was tired and distracted (Doc. 279, p. 77). When asked whether "there was anything about the road surface in the lane that you would say contributed to the accident," he responded, as follows:
The only thing that I could say about the roads is about how narrow they actually are. But that does not directly contribute to the accident , but that is the only problem with that area, which is how narrow the roads actually are (Id. , at pp. 84-85) (emphasis added).
Mr. Kuebler similarly testified that no potholes caused the Incident, and that when he felt the Kuebler Vehicle "leave the road" just prior to it striking Ms. Papaj, it "did not cause him to react" or change the way he was driving in any way (Id. ).
Based on Mr. Kuebler's testimony, the condition of East River Road and its shoulder in the vicinity of the Incident was not a substantial factor in causing the Incident.
Plaintiff's expert, John Serth, P.E., attempts to create material issues of fact by asserting that, inter alia , in the event the shoulder were constructed differently, Ms. Papaj would have been differently positioned. There are several problems with his opinion, including that it is without any evidentiary foundation; it speculates as to where Ms. Papaj may have been standing in the event the shoulder were wider; and it ignores that the question is not whether the shoulder could have been wider, but whether it was wide enough. There was no need for the shoulder to be wider, because the width complied with "the modern standard set forth in the Erie County Highway Design Manual (1980), and the usable shoulder size is twice that of the two-foot minimum required by New York State for a collector road with the volume of traffic" (Doc. 284, ¶14).
Notice of a Defective Condition
Where a prior written notice requirement is in effect, a claim against the municipality cannot survive in the absence of such notice ( David v. City of New York , 267 AD2d 419 [2d Dept 1999] ; see also, Poirier v. City of Schenectady , 85 NY2d 310, 314 [1995] [where a prior written notice requirement is in effect, liability is imposed only for those defects or hazardous conditions for which the municipality has actually been notified exist at a specified location]).
Erie County Local Law No. 3 (2004) requires prior written notice be given to the Erie County Commissioner of Public Works of any defective, out of repair, unsafe, dangerous or obstructed condition. Such notice must provide the nature and specific location of the condition stated to exist (Id. ).
There are limited exceptions to the prior written requirement, including when the municipality created the defect through an affirmative act of negligence, or a special use confers a special benefit upon the municipality ( De Zapata v. City of NY , 172 AD3d 1306 [2d Dept 2019] ). "Neither actual nor constructive notice may substitute or override a prior written notice requirement" (Id. ).
To establish prior written notice, the notice must specify the exact location and particular condition of the defect ( Ortsman v Town of Oyster Bay , 178 AD2d 588 [2d Dept 1991] ) [previously served notice of claim that failed to specify exact location of defect did not constitute prior written notice, as "[t]here is absolutely no indication from the prior notice of claim that the defective condition in that case, which could have been anywhere on the basketball court, was the same defective condition involved in this case"]). Thus, generalized complaints are insufficient to constitute prior written notice ( Gellos v. Town of Hempstead , 284 AD2d 370 [2d Dept 2001]).
In light of the foregoing, the email sent from a resident of East River Road to Richard Denning, Senior Highway Maintenance Engineer, requesting the removal of a guardrail does not constitute the type of notice required herein (Doc. 339). Aside from not being provided to the County Commissioner of Public Works, as is required by Local Law No. 3, the email relates to a guardrail located in excess of a quarter of a mile from the Incident and does not refer to any defect or danger associated with the shoulder of the road.
The Lack of Sidewalks Along East River Road in the Vicinity of the Incident
The County does not own or maintain sidewalks abutting county roads (Doc. 282, p. 59), which is consistent with § 151 of the New York Highway Law. That section provides, as follows:
The town board of any such town may by resolution, direct the town superintendent to construct a sidewalk along a described portion of any highway of the town, including county roads and state highways, in the manner and not exceeding an expense to be specified in the resolution, and the expense of constructing such sidewalk shall be a town charge, and shall be paid in the same manner as other town charges.
As of the date of the Incident, the Town had not requested a permit to construct a sidewalk along East River Road in the vicinity of the Incident.
Defendant Michelle L. Kuebler's Motion for Summary Judgment
Plaintiff contends that Ms. Kuebler is vicariously liable to her because, as a co-lessee of the Kuebler Vehicle, Ms. Kuebler was an "owner" of it. An "owner" of a motor vehicle may include a lessee for greater than thirty (30) days (V & T Law § 388[3]).
The listing of an individual as an "owner" of a motor vehicle on a certificate of title or lease is prima facie evidence of ownership, but "[t]his presumption of ownership is not conclusive, and may be rebutted by evidence which demonstrates that another individual owned the vehicle in question" ( Dorizas v. Island Insulation Corp. , 254 AD2d 246, 247 [2d Dept 1998] ). "Title to a motor vehicle passes when the parties intend that it pass" ( Id. , at 247 ). Accordingly, a presumption of ownership is rebutted by evidence that a person other than the title holder or co-lessee exercised "dominion or control over the vehicle" ( Id. , at 247-248 ; see also, Vergari v. Kraisky , 120 AD2d 739 [2d Dept. 1986] ).
Ms. Kuebler is Mr. Keubler's mother, and she testified at her deposition that she co-signed the Kuebler Vehicle's lease agreement (the "Lease") solely to enable Mr. Kuebler to receive a discounted price and lease payment (Doc. 381, pp. 26-27). She had no intention of ever operating, controlling, or using the Kuebler Vehicle, or to have a possessory interest in it (Doc. 385, ¶¶9, 11, 23).
It is undisputed that, subsequent to cosigning the Lease, (i) Mr. Kuebler took exclusive possession, custody, and control of the Kuebler Vehicle; (ii) he registered the Kuebler Vehicle in his name; (iii) he purchased the insurance and insured it in his own name under his own insurance policy, without listing any additional drivers (Id. , at ¶¶11-13, 23); (iv) Ms. Kuebler has never had keys to the Kuebler Vehicle; (v) Ms. Kuebler has never had access to the Kuebler Vehicle because it was parked at Mr. Kuebler's residence; and (vi) she never operated it (Id. , at ¶¶15-19).
Under these circumstances, Ms. Kuebler was not an "owner" of the Kuebler Vehicle at the time of the Incident, and she may not be held liable for the Incident, pursuant to V & T Law § 388.
In addition, the record is devoid of any admissible evidence that Ms. Kuebler distracted Mr. Kuebler, via telephone or text messaging, just prior to and/or at the time of the Incident. Indeed, assuming, arguendo , any such evidence existed, such conduct may not serve as a basis for liability against Ms. Kuebler ( Vega, 162 AD3d 167 [an individual who calls or texts a driver who ultimately injures a third-party, does not owe a duty to that third-party, and as such cannot be held liable for personal injuries sustained by the third party]).
Plaintiff's Motion for Partial Summary Judgment and to Dismiss Certain Affirmative Defenses
Plaintiff contends Mr. Kuebler was negligent in operating the Kuebler Vehicle, as a matter of law, because he violated section 1128 of the Vehicle and Traffic Law ("VTL").
Section 1128(a) of the VTL provides as follows:
A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
A violation of VTL § 1128(a) constitutes negligence per se ( Davis v. Turner , 132 AD3d 603 [1st Dept 2015] ).
It is undisputed that, upon the Kuebler Vehicle leaving East River Road and striking Ms. Papaj, Mr. Kuebler violated VTL § 1128(a). The following facts support this conclusion: (i) the State Police concluded that the Kuebler Vehicle "exited the north shoulder of the roadway and struck the pedestrian.... The primary cause of this collision is the failure ... to maintain the marked lane of travel on the roadway" (Doc. 225, p. 8); (ii) Mr. Kuebler testified at his deposition that he "was definitely tired ... [a]nd ... looking at the water at some point during that drive (Doc. 400, p. 77); and (iii) the Video shows the Kuebler Vehicle leaving the roadway (Doc. 393).
In opposing summary judgment, Mr. Kuebler relies on New York Pattern Jury Instruction (" NYPJI") 2:84 (misidentified as 2:77) for the proposition that when a motor vehicle skids, the jury must determine whether the operator of said vehicle operated the vehicle with reasonable care and the mere happening of the skid, standing alone, does not constitute negligence.
The Kuebler Vehicle, however, did not "skid" in the traditional sense contemplated by PJI 2:84, if at all. Rather, despite the dry pavement, clear weather, and the absence of oncoming traffic, Mr. Kuebler drove the Kuebler Vehicle off the roadway. To the extent the Kuebler Vehicle experienced a momentary (i.e., fraction of a second) "skid" when the front passenger's side tire dropped less than 2.5 inches from the roadway to the shoulder, such "skid" came about due to Mr. Kuebler's negligence in leaving the roadway. The "skid" (to the extent a skid occurred) was not necessitated by an emergency, such as a child or deer unexpectedly darting out into the road. PJI 2:84 does not apply to this matter and will not be charged to the jury in the event this matter proceeds to a jury.
Mr. Kuebler's reliance on Jump v. Jump (69 AD2d 947 [3d Dept 1979] ) is misplaced. Jump holds that "when there is some evidence of circumstances beyond the control of a driver, which would account for an accident without any negligence on the part of the driver, leaving the proper lane of travel or skidding is not conclusive evidence of negligence" ( Id. , at 948 ). There were no "circumstances beyond the control of [Mr. Kuebler]." Rather, he simply acted negligently in operating the Kuebler Vehicle off the roadway. Similarly, Mr. Kuebler's reliance on Arricale v. Leo (295 AD2d 920 [4th Dept 2002] ), where a vehicle was caused to skid due to the presence of ice and snow, neither of which were present on the evening of the Incident (in June 2017).
Plaintiff also violated VTL § 1146, which provides, in relevant part, that "every driver of a vehicle shall exercise due care to avoid colliding with any ... pedestrian." Notably, the Kuebler Vehicle did not strike Ms. Papaj while she was standing within a driving lane of East River Road. Rather, at the time of the Incident, Ms. Papaj was standing outside the driving lane and she was struck when the Kuebler Vehicle left the driving lane (see Video and Mr. Kuebler's deposition testimony at Docs. 393 and 400, respectively).
There is also some evidence that Mr. Kuebler may have been operating the Kuebler Vehicle at an excessive rate of speed, in violation of VTL § 1180.
The posted speed limit in the vicinity of the Incident was 35 mph. The State Incident Reconstruction Report determined that the Kuebler Vehicle was traveling at least 41 mph at the time it struck Ms. Papaj (Doc. 225, p. 6).
In addition, the court rejects Mr. Kuebler's contentions that East River Road was defective, and that the County and/or the Town are therefore responsible for the Incident (see above discussion granting the County's and Town's respective applications for summary judgment).
Mr. Kuebler seeks to create a material issue of fact where none exist. Plaintiff's motion for partial summary judgment, as limited to negligence, is hereby granted.
Turning to the application to dismiss Mr. Kuebler's First and Third Affirmative Defenses, the First Affirmative Defense asserts comparative negligence and the Third Affirmative Defense asserts causation related to Ms. Papaj's injuries (not liability for the happening of the Incident).
Plaintiff's reliance on Hai Ying Xiao v. Martinez (185 AD3d 1014 [2d Dept 2020] ) is misplaced. The court held that a pedestrian-plaintiff who establishes that she exercised due care in walking was not a contributing cause of the collision and was therefore entitled to have the defendant's affirmative defense alleging comparative negligence dismissed. Ms. Papaj, however, has not demonstrated that she was exercising due care at the time of the Incident.
Plaintiff contends that Ms. Papaj took evasive action to avoid the Incident and that the Video shows that she can be seen stepping back away from East River Road as the Kuebler Vehicle approached her. However, a jury could reasonably disagree with Plaintiff's interpretation of the Video. Indeed, a jury could reasonably conclude that, at the time of the Incident, Ms. Papaj's attention was focused on her dog; that she was not facing the oncoming Kuebler Vehicle; and that it is unclear whether she was stepping away from the edge of the road due to the oncoming Kuebler Vehicle, or because she was simply following her dog (who was moving away from the edge of the road). It is further unclear whether Ms. Papaj was aware of the Kuebler Vehicle, or its proximity to her. What is clear, however, is that Ms. Papaj chose to walk her dog at the edge of East River Road, as opposed to several (or more) feet away from it on the adjacent grassy area. Thus, jury questions exist as to Ms. Papaj's comparative fault, and Plaintiff's application to dismiss Mr. Kuebler's First Affirmative Defense is denied.
In his Third Affirmative Defense, Mr. Kuebler asserts that his negligence did not cause Ms. Papaj's injuries. The Third Affirmative Defense relates to causation for injuries, not liability for the Incident. Had the Third Affirmative Defense related to causation for liability, the court would have dismissed it, having previously found that Mr. Kuebler was negligent, as a matter of law, in the operation of the Kuebler Vehicle at the time of the Incident.
However, there is a meaningful distinction between causation for liability—the Incident, and causation for injuries (and/or damages) that may have resulted from the Incident.
In light of the court's prior determination that Mr. Kuebler was negligent in the operation of the Kuebler Vehicle at the time of the Incident, at trial the jury will be instructed that such negligence was a substantial factor in causing Ms. Papaj's injuries. However, the jury will then be asked to consider whether Ms. Papaj was also negligent; and, if so, whether her negligence was a substantial factor in causing her injuries; and, if so, the jury will be tasked with apportioning comparative fault as between Mr. Kuebler and Ms. Papaj (Id. , at 324 ["When a defendant's liability is established as a matter of law before trial, the jury must still determine whether the plaintiff was negligent and whether such negligence was a substantial factor in causing plaintiff's injuries. If so, the comparative fault of each party is then apportioned by the jury. Therefore, the jury is still tasked with considering the plaintiff's and defendant's culpability together"]). Thus, the application to dismiss Mr. Kuebler's Third Affirmative Defense, which relates to causation for the injuries (not for liability) is denied.
In light of the foregoing, it is hereby
ORDERED , that Defendant Town's motion for summary judgment is granted, and the Complaint and all cross-claims against it are hereby dismissed; and it is further
ORDERED , that Defendant Elizabeth Hladczuk's motion for summary judgment is granted, and the Complaint and all cross-claims against her are hereby dismissed; and it is further
ORDERED , that Defendant County's motion for summary judgment is granted, and the Complaint and all cross-claims against it are hereby dismissed; and it is further
ORDERED , that Plaintiff's motion for partial summary judgment, as limited to negligence, is hereby granted; and it is further
ORDERED , that Plaintiff's motion to dismiss the First and Third Affirmative Defenses of Mr. Kuebler's Answer (comparative fault and causation for injuries, respectively) is hereby denied; and it is further
ORDERED , that Defendant Michelle L. Kuebler's motion for summary judgment is granted, and the Complaint and all cross-claims against her are hereby dismissed.
This constitutes the Decision and Order of this Court. Submission of an order by the parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.