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Rappa v. Incorporated Village of Patchogue

Supreme Court, Suffolk County
Sep 12, 2019
65 Misc. 3d 1203 (N.Y. Sup. Ct. 2019)

Opinion

609133/2017

09-12-2019

Jean RAPPA, Plaintiff, v. INCORPORATED VILLAGE OF PATCHOGUE, Defendants.

Keegan Keegan Ross & Rosner, 174 N. Ocean Ave, POB 918, Patchogue, NY 11772, For plaintiff Gerber Ciano Kelly, LLP, 228 Park Avenue, St 97572, New York, NY 10003, For defendant


Keegan Keegan Ross & Rosner, 174 N. Ocean Ave, POB 918, Patchogue, NY 11772, For plaintiff

Gerber Ciano Kelly, LLP, 228 Park Avenue, St 97572, New York, NY 10003, For defendant

Carmen Victoria St. George, J.

The following numbered papers were read upon this motion:

Notice of Motion/Order to Show Cause 14-23

Answering Papers 27-31

Reply 32-33

Briefs: Plaintiff's/Petitioner's

Defendant's/Respondent's

Before the Court is an action for negligence to recover damages for serious injuries allegedly sustained by the plaintiff, Jean Rappa, as a result of a fall in a parking lot maintained by defendant, Incorporated Village of Patchogue, on April 25, 2016 at the north and west of the premise at 41 East Main Street, Village of Patchogue, Town of Brookhaven, County of Suffolk, State of New York.

Defendant moves this Court for an Order pursuant to CPLR § 3212, for summary judgment in defendant's favor for lack of written notice. Plaintiff opposes defendant's motion. Defendant's motion is granted.

BACKGROUND

Plaintiff Jean Rappa is a retail clerk at Colony Shop, a store in the Village of Patchogue. On the morning of April 25, 2016 she drove to work and parked in the parking lot maintained by the Village of Patchogue that is the subject of this action. When she left work that day she fell forward on the right side of her body because her toe got caught in a crack in the concrete of the parking lot. The plaintiff suffered from a fractured right humerus and was placed into a sling for three months.

On April 11, 2016 at a Village Board meeting Mark Siegel spoke at a public comments section, in affirmations of both parties they refer to the speaker as "Mark Blum," based upon the meeting minutes, it appears the speaker is Mark Siegel and is associated with Blum's, a store in the Village of Patchogue located next to Colony Shop. Mr. Siegel spoke that night complaining "[t]he light behind our store goes out. The driveway below our parking lot has big holes." Trustee Felice responded, "Joe Dean is out of Town, but I will speak to him when he gets back."

It is undisputed that the Village saw cut the asphalt with two parallel lines at either side of the pothole in anticipation of repaving it prior to plaintiff's fall on April 25, 2016. On April 28, 2016 the Village repaired the location by repaving it.

On May 03, 2016, the plaintiff filed a Notice of Claim with Village Clerk Patricia Seal. After receipt of the Notice of Claim the Village Clerk conducted a search of the Village's records and found no prior written notice regarding this pothole. On May 12, 2017, plaintiff then filed a Summons and Complaint. The defendant joined issue by answer on June 6, 2017 raising as an affirmative defense that it did not receive written notice pursuant to Village Law 6-628, CPLR 9804, and Village Code. The Village produced log books of the Department of Public Works and on search found no work orders for the saw cuts.

DISCUSSION

A. CPLR § 3212 : Summary Judgment Legal Standard

This Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact ( Andre v. Pomeroy, 35 NY2d 361 [1974] ). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact ( Cauthers v. Brite Ideas, LLC, 41 AD3d 755 [2d Dept 2007] ). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff ( Makaj v. Metropolitan Transportation Authority , 18 AD3d 625 [2d Dept 2005] ).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case ( Alvarez v. Prospect Hosp. , 68 NY2d 320 [1986] ; Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395 [1957] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York Univ. Med. Or. , 64 NY2d 851 [1985] ). Once such proof has been offered the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form and "must show facts sufficient to require a trial of any issue of fact" ( CPLR § 3212[b] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ). As the courts function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true ( see Roth v. Barreto , 289 AD2d 557 [2d Dept 2001] ; O'Neil v. Town of Fishkill , 134 AD2d 487 [2d Dept 1987] ).

In support of the defendant's motion, the Village submits, inter alia , the pleadings, an affidavit of Village Clerk Patricia Seal, the deposition testimony of the plaintiff and the Village Highway Supervisor Garafola. In support of her motion, the plaintiff submits, inter alia , the deposition testimony of Village Clerk Seal and a log book recording the work of the Village's public works department.

B. Written Notice Requirement

Village Law § 6-628, which is nearly identical to CPLR § 9804, provides, in pertinent part, that

"[n]o civil action shall be maintained against the village ...for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk, street, highway, bridge or culvert unless written notice of the defective unsafe, dangerous or obstructed condition or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or to cause the snow or ice to be removed, or the place otherwise made reasonably safe"

( Village Law § 6-628 ).

Such notice is avoided where the plaintiff demonstrates that the municipality "created the defect or hazard through an affirmative act of negligence" or that a "special use" conferred a benefit on the municipality ( Amabile v. City of Buffalo , 93 NY2d 471, 474 [1999] ). A publicly-owned parking lot falls within the definition of a highway and therefore prior notice of defect is required (see e.g. Groninger v. Vil. of Mamaroneck , 17 NY3d 125, 128 [2011] ; Peters v. City of White Plains , 58 AD3d 824, 825 [2d Dept 2009] ; Walker v. Incorporated Vil. of Freeport , 52 AD3d 697, 697 [2d Dept 2008] ; Stratton v. City of Beacon , 91 AD2d 1018, 1019 [2d Dept 1983] ).

Village of Patchogue Code § 285-1, "Notification of Defects," provides in relevant part, "In addition to those municipally owned types of real property identified in Village Law § 6-628, all municipal parking fields shall be considered within the meaning of the terms "street, highway, bridge, culvert, sidewalk or crosswalk" (Village of Patchogue Code § 285-1 ). The relevant section of the Code must not run afoul of General Municipal Law § 50-e (4) ( Woodson v. City of New York , 93 NY2d 936 [1999] ). In short, it does not.

The parking lot here serves the "functional purpose" ( Woodson , 93 NY2d at 937, 938 ) of a "highway" which Vehicle and Traffic Law § 118 broadly defines as "[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel" ( Vehicle and Traffic Law § 118 ). It was owned and maintained by the Village and was accessible to the general public for vehicular travel. As a result, the Village was entitled to notice and an opportunity to correct any defect before being required to respond to any claim of negligence. Municipalities are "not expected to be cognizant of every crack or defect within [their] borders, will not be held responsible for injury from such defect unless given an opportunity to repair it" ( Gorman v. Town of Huntington , 12 NY3d 275, 279 [2009] ).

An affidavit of an official charged with the responsibility of keeping an indexed record of all notices of defective conditions received by a village is sufficient to establish that no prior written notice was filed ( Velho v. Vil. of Sleepy Hollow , 119 AD3d 551 [2d Dept 2014] ). The affidavit need only indicate that the official has caused a search of the department's records to be made and that no written notice of the defective condition was found ( Cruz v. City of New York , 21 AD2d 546 [1st Dept 1995] ). Any verbal complaints or other documents generated by the village are insufficient to satisfy the statutory requirement ( see Wilkie v. Town of Huntington , 29 AD3d 898 [2d Dept 2006] ). A verbal complaint reduced to writing by a municipality does not constitute prior written notice ( see McCarthy v. City of White Plains , 54 AD3d 828 [2d Dept 2008] ; Akcelik v. Town of Islip , 38 AD3d 483 [2d Dept 2007] ; Cenname v. Town of Smithtown , 303 AD2d 351 [2d Dept 2003] ). Similarly, neither constructive notice nor actual notice of a defect obviates the need for prior written notice to the village ( see Amabile v. City of Buffalo , supra ).

Village Clerk Seal has submitted an affidavit to this Court which stated that the Village had no prior written notice of the defect ( Velho v. Vil. of Sleepy Hollow , supra ). The affidavit was in the proper form ( Cruz v. City of New York , supra ). As to the Village Board meeting minutes annexed to the affidavit, the complaints of Mr. Siegel at the meeting are merely verbal complaints ( Wilkie v. Town of Huntington, supra ). The meeting minutes themselves do not constitute prior written notice ( McCarthy v. City of White Plains , supra ). This actual notice of a defect does not obviate the need for prior written notice to the village ( Amabile v. City of Buffalo , supra ).

Defendant has made out a prima facie case that no prior written notice of the defect was served on the Village. The burden therefore shifts, and the Court turns its attention below to the plaintiff and whether she has successfully raised a triable issue of fact.

C. Burden Shift

Whether this motion is granted hinges on whether plaintiff can show that the Village "created the defect or hazard through an affirmative act of negligence" or that a "special use" conferred a benefit on the municipality ( Amabile v. City of Buffalo , 93 NY2d 471, 474 [1999] ).

There are two exceptions to the prior written notice requirements, under Village Law and civil practice rule, authorizing commencement of personal injury action against a village for defective condition of street, highway, bridge, culvert, sidewalk, crosswalk, or parking lot, namely that: (1) village affirmatively created the condition through an affirmative act of negligence that immediately resulted in the dangerous condition, or (2) a special use resulted in a special benefit to the village ( Groninger v. Vil. of Mamaroneck , 67 AD3d 733 [2d Dept 2009] , affirmed 17 NY3d 125 [2011] ).

The Village did not affirmatively create the condition through an affirmative act of negligence that immediately resulted in the dangerous condition. Here, the evidentiary proof that the plaintiffs submitted in opposition to summary judgment was insufficient to raise an issue of fact as to whether the municipality created the defective condition in the park walkway through an affirmative act of negligence ( Khaghan v. Rye Town Park Com'n , 8 AD3d 447 [2d Dept 2004] ). The Village would need to create the broken and defective condition of the pothole that resulted in the plaintiff's injury ( Kiernan v. Thompson , 73 NY2d 840 [1988] ). Evidence of the saw cuts fall short of that, the preexisting pothole could not have been created by the Village. Plaintiff has failed to show that defendant created the obstructed condition by an affirmative act of negligence, as to render the Village's prior notice provision inapplicable.

The special use exception is not applicable here. The special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use ( Loiaconi v. Vil. of Tarrytown , 36 AD3d 864 [2d Dept 2007] ). The special use exception is a use different form the normal intended use of the public way ( Id. ). No such exception was raised by the plaintiff, and even if it was the parking lot is simply public and has no special use. Accordingly, the plaintiff cannot invoke the doctrine of special use.

As such, the plaintiff has failed to raise any issue of fact in opposition to the Village's demonstrated entitlement to judgment as a matter of law.

CONCLUSION

Accordingly, the Village has raised an affirmative defense regarding notice and met the necessary burden. After the burden shifted to the plaintiff, she unsuccessfully raised a triable issue of fact regarding the Village's saw cut.

Defendant's motion for summary judgment is granted.

The foregoing constitutes the Order of this Court.


Summaries of

Rappa v. Incorporated Village of Patchogue

Supreme Court, Suffolk County
Sep 12, 2019
65 Misc. 3d 1203 (N.Y. Sup. Ct. 2019)
Case details for

Rappa v. Incorporated Village of Patchogue

Case Details

Full title:Jean Rappa, Plaintiff, v. Incorporated Village of Patchogue, Defendants.

Court:Supreme Court, Suffolk County

Date published: Sep 12, 2019

Citations

65 Misc. 3d 1203 (N.Y. Sup. Ct. 2019)
2019 N.Y. Slip Op. 51479
118 N.Y.S.3d 377