Opinion
# 2015-045-039 Claim No. 120298 Motion No. M-84620
12-24-2015
DONNA POURIA, as Executor of the Estate of ROBERT E. POURIA and DONNA POURIA, Individually v. THE STATE OF NEW YORK
Gruenberg, Kelly, Della By: Zachary M. Beriloff, Esq. Hon. Eric T. Schneiderman, Attorney General By: Daniel S. Hallak, Assistant Attorney General
Synopsis
Defendant's summary judgment motion, claimant fell off his scooter at a street fair due to a pothole in the street.
Case information
| UID: | 2015-045-039 |
| Claimant(s): | DONNA POURIA, as Executor of the Estate of ROBERT E. POURIA and DONNA POURIA, Individually |
| Claimant short name: | POURIA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120298 |
| Motion number(s): | M-84620 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Gruenberg, Kelly, Della By: Zachary M. Beriloff, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Daniel S. Hallak, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 24, 2015 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion with annexed Exhibits A-G, Defendant's Memorandum of Law in Support, Claimants' Affirmation in Opposition and Defendant's Reply.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3212 seeking an order granting summary judgment in its favor and dismissing the claim. Claimants, Donna Pouria, as executor of the estate of Robert E. Pouria and Donna Pouria, individually, oppose the motion.
The underlying action occurred on September 25, 2010 at approximately 12:00 p.m. when Robert Pouria attended the New Hyde Park Streetfair with his wife, Donna Pouria. At that time, Mr. Pouria was ambulating with the use of a battery powered motorized scooter. Mr. Pouria fell off his scooter at the corner of North 10th Avenue and Jericho Turnpike allegedly due to a pothole in the street at that location.
On September 25, 2010, the New Hyde Park Streetfair was being held on Jericho Turnpike which was closed down for automobile traffic and opened exclusively for foot traffic by pedestrians from Covert Avenue to New Hyde Park Road. At that location Jericho Turnpike extends east and west with two lanes of travel in each direction. The eastbound and westbound lanes are separated by a double yellow line. The street fair was a summer event showcasing local vendors, music, food and businesses.
Mr. Pouria attended the street fair on a battery powered motorized scooter, which he had owned for over a year prior to the accident. The scooter's top speed was around five miles per hour. Claimants arrived at the fair at approximately 10:30 a.m. Claimants entered onto Jericho Turnpike for the fair at the corner of South 12th Street and Jericho Turnpike. While at the street fair, claimants traveled back and forth on Jericho Turnpike in both the westbound and eastbound lanes. Claimants were at the street fair for approximately an hour and a half before the accident occurred. During that time, claimants traveled eastbound on Jericho Turnpike all the way to its intersection with New Hyde Park Road, the end of the fair. Claimants stopped at vendors and purchased a t-shirt and some spices.
Mr. Pouria was asked at his 50-h hearing how the accident occurred. He testified that:
"After we made the U-turn on Jericho, heading west from New Hyde Park Road, we were weaving in and out of the crowd. It was very crowded. All I saw was the backs of a lot of people. Just before the corner, I didn't see a pothole that was on the ground. As soon as I hit it, with my first wheel, which was a single wheel, it flipped me over on to the right side. I put my arm down and the chair came on top of me" (Def Exh C, p. 19).
Mr. Pouria stated that the pothole that caused his accident was in the westbound portion of Jericho Turnpike. He explained that there were two lanes for moving traffic on the westbound side of Jericho Turnpike. He stated that the pothole which caused his fall was located in the lane closer to the yellow divider line as opposed to the lane closer to the north side of Jericho Turnpike. Mr. Pouria described the pothole as an indentation in the roadway.
Brian Fitzgerald, Highway Maintenance Supervisor at the New York State Department of Transportation, was deposed in this matter. Mr. Fitzgerald explained his duties included taking out his crew of 6 workers and conducting any assigned work given to him on a particular day. Mr. Fitzgerald was considered the foreman of his work crew. The roadways he was responsible for included Jericho Turnpike, Hillside Avenue and a small portion of Union Boulevard. Mr. Fitzgerald was responsible for approximately 7 miles of Jericho Turnpike. He testified that pothole repair work was performed on Jericho Turnpike on August 18, 2010 and September 14, 2010. Mr. Fitzgerald explained that he would drive slowly along Jericho Turnpike with his crew and survey the road in order to determine if there were any potholes which needed repairs. If Mr. Fitzgerald noticed a pothole that needed repair he would usually either repair it that day or return the next day and repair the pothole. He stated that they repair potholes for the safety of drivers and pedestrians. He explained that they would repair cracks in the roadway with a cold patch material which he described as blacktop with an oil base to keep it together.
In his Affidavit, Mr. Fitzgerald stated that he reviewed the photographs attached to the claim. He stated that the photographs do depict a small pothole in the westbound lane of traffic on Jericho Turnpike, closer to the sidewalk, as opposed to being closer to the divider of the roadway. He stated that the pothole would have been repaired by his crew, however, such a repair was not imminent since the roadway was safe for the reasonable use of the roadway by motorized vehicles. Additionally there was no notice of any prior accidents regarding the pothole in this roadway.
Shaik Saad, Civil Engineer III/Manager Permits Section in Traffic Engineering and Safety Group at the New York State Department of Transportation submitted an Affidavit in this matter. He stated that he managed the highway work permit staff that reviewed and issued highway work permits. He continued that every year in September the Village of New Hyde Park held an annual street fair on Jericho Turnpike. The Village was required to apply for a permit in order to suspend the normal use of the roadway and shut down lanes of travel for pedestrian use during the fair. The 15th annual street fair was held on September 25, 2010. The Village was permitted to hold the street fair as long as it assumed all responsibility, liability, enforcement, road closure, detour plan and clean up for the event under the annual permit. Additionally, the Village would have to take all reasonable measures to insure that the roadway was safe for the use of pedestrians as this was a one day deviation from the normal vehicular use of that portion of Jericho Turnpike.
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Med. Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party (Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634 [2d Dept 2010]).
The State of New York has a duty to maintain its roadways in a reasonably safe condition and the breach of that duty can result in liability to the defendant if the ascribed negligence in maintaining the road is a proximate cause of the accident (Wittorf v City of New York, 23 NY3d 473 [2014]). In addition, the State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (Friedman v State of New York, 67 NY2d 271 [1986]). However, the State is not an insurer of the safety of its roadways, and the mere fact that an accident resulting in injury occurred does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take reasonable measures to correct the condition (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). When an alleged dangerous condition is at issue, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy the dangerous condition (Timcoe v State of New York, 267 AD2d 375 [2d Dept 1999]).
"To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept 2003]). A property owner may not be held liable in damages for trivial defects that do not constitute a trap or nuisance over which a pedestrian might merely stumble, stub their toes or trip (Zalkin v City of New York, 36 AD3d 801 [2d Dept 2007]). Whether or not a dangerous defective condition exists on the property of another so as to create liability depends upon the facts and circumstances of each case. The width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury are all factors to be taken into consideration when analyzing whether the defect was a dangerous condition so as to create liability (Trincere v County of Suffolk, 90 NY2d 976, 978 [1997] [internal quotations and citations omitted]).
Defendant argues that claimant failed to show that defendant breached a duty of care towards claimant. Specifically, defendant avers that it had no duty to fix minor cracks in the roadway that were safe for the intended use of the roadway. Defendant contends that the Village of New Hyde Park assumed control over the roadway on the date in question. Defendant continues that claimant has failed to make out a prima facie case of negligence. Defendant asserts that claimant has failed to prove that a dangerous condition existed on the roadway. Defendant also states that claimant failed to prove that defendant created or was on notice of the allegedly defective condition of the roadway.
Initially, it is clear that defendant has a nondelegable duty to maintain its roadways in a reasonably safe condition for travel (Cockburn v City of New York, 129 AD3d 895 [2d Dept 2015] citing Lopes v Rostad, 45 NY2d 617 [1978]). The issue of whether the Village of New Hyde Park was required by the terms of the permit to indemnify defendant is not properly before the Court at this time and in any event is not a dispositive factor of this motion.
In regard to defendant's lack of notice of the defective condition of the roadway, Mr. Fitzgerald merely states that he did not do any work to the pothole because it was one, in his opinion, that was not of a sufficient size and shape that would constitute a dangerous condition in the roadway. Thus, defendant has failed to establish a lack of notice as a matter of law (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Similarly, defendant has failed to establish, at this juncture, that the allegedly defective condition of the roadway is trivial. A defendant seeking dismissal of a claim on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 79 [2015]). Mr. Pouria described the defective condition of the roadway as an indentation, possibly more than a foot wide. Mr. Pouria's testimony is also clear that his fall occurred in the portion of Jericho Turnpike which corresponds to the westbound lane of traffic closest to the yellow divider line. The photographs attached to the claim do not appear to depict a significant defect in that lane of traffic. This question of fact can only be resolved at trial.
Additionally, the issue of whether a condition is open and obvious is fact specific and usually a question of fact which should be left for the trier of fact to resolve (Cassone v State of New York, 85 AD3d 837, 838 [2d Dept 2011]).
Based on the evidence presented the Court finds that defendant has failed in its burden to establish prima facie entitlement to judgment as a matter of law.
Therefore, for the foregoing reasons, defendant's motion is denied in its entirety.
The parties are directed to contact the Court upon receipt of this Decision and Order in order to schedule a trial date in this matter as soon as practicable.
December 24, 2015
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims