Opinion
Index No. 2019-51664
02-01-2022
CAROLYN A. REYNOLDS and FRANK S. REYNOLDS, Plaintiffs, v. CITY OF POUGHKEEPSIE, Defendant.
Unpublished Opinion
DECISION AND ORDER
HON. MICHAEL G. HAYES, AJSC
The Court read and considered the following documents upon this motion:
PAPERS NUMBERED
Notice of Motion...................... 1
Affirmation...................... 2
Affidavits....................... 3
Exhibits......................... 4
Memorandum of Law................ 5
Affirmation in Opposition............. 6
Exhibits......................... 7
Affidavits....................... 8
Affirmation in Reply.................. 9
Defendant moves for an order, pursuant to CPLR 3212, granting it summary judgment and dismissing the plaintiffs' complaint.
Background
Plaintiff brings this action seeking to recover damages allegedly sustained on January 21, 2019, when she slipped and fell on snow and/or ice located on the sidewalk adjacent to the City of Poughkeepsie's parking lot at 243 Church Street, Poughkeepsie, New York. Plaintiffs' complaint alleges that defendant either created the dangerous condition and/or had actual notice of the dangerous condition and/or should have known, through the exercise of due care, of the dangerous condition. Plaintiff Frank S. Reynolds' cause of action is derivative in nature.
Defendant's Motion for Summary Judgment
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974]). The movant must set forth a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponents of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 4 9 N.Y.2d 557 [1980]).
Defendant City of Poughkeepsie (the "City") states that it cannot be held liable for the happening of the accident as it had no prior written notice of any defect. Section 15.03 of the City of Poughkeepsie Administrative Code provides:
"The city shall not be liable for the damage or injury sustained by any person in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk in said city being out of repair, unsafe, dangerous, or obstructed by snow, ice or otherwise, in any way or manner, unless written notice of the defective, unsafe, dangerous or obstructed condition of said street, highway, bridge, culvert, sidewalk or crosswalk shall have been given to the commissioner of public works of said city at least twenty-four hours previous to such damage or injury."
In regard to the lack of notice, the City submits the affidavit of Christopher Gent, Commissioner of Public Works. Mr. Gent states that the location where plaintiff Carolyn Reynolds allegedly fell is a public sidewalk adjacent to a City owned and maintained parking lot at 243 Church Street. The roadway which intersects with the parking lot is New York State Route 44/55 which is not maintained or plowed by the City, but by the New York State Department of Transportation.
Mr. Gent maintains that his office keeps and maintains all written notices of any defective, unsafe, dangerous or obstructed City streets and sidewalks, involving snow or ice or otherwise. A diligent search of those records, indicates that prior to the accident of January 21, 2019, the City did not receive prior written notice of any defective, unsafe and/or dangerous condition, including but not limited to the presence of snow or ice, at or about the accident location. Mr. Gent also states that there is no record of prior slip and fall accidents involving snow and/or ice at the accident location.
Mr. Gent states that the accident location does not confer any special benefit upon the City unrelated to the public use. The sidewalk upon which plaintiff Carolyn Reynolds allegedly fell is open and available for public use.
Mr. Gent maintains that the City did not affirmatively create the snow and/or ice accumulation claimed by plaintiff Carolyn Reynolds to have caused her fall. The standard practice of the City is to commence snow maintenance of City parking lots and adjacent sidewalks upon the accumulation of at least one inch of snowfall. Mr. Gent reviewed overtime records from City employees for snow operations from Saturday, January 19, 2019 through Sunday, January 20, 2019, revealing a significant snow event which occurred within 24 hours of the subject accident.
Mr. Gent reiterates that it is not the practice or policy of the City to affirmatively place or push snow onto the sidewalks adjacent to the 243 Church Street parking lot.
Defendant also submits the affidavit of Daniel Vonknoblauch, Parking Administrator for the City. The standard snow removal procedure for the subject parking lot is to come in off eastbound Route 44/55 with a plow truck and push all the snow back to the east side of the lot and/or the north-east corner at the rear of the lot. The City does not push snow out of the lot toward the sidewalk or Route 44/55. Any snow or ice remaining in the lot is removed by hand with a shovel and/or snow blower until clear. The City does not, as a matter of practice, pile snow on the sidewalk at the alleged accident location. The affiant interviewed City "snow team members" and each confirmed the aforementioned procedures were followed.
Mr. Vonknoblauch states that as the City does not pile snow on the sidewalk at the subject location, the same may have resulted from New York State Department of Transportation plows clearing Route 44/55.
A municipality that has enacted a prior written notice provision may not be subjected to liability for injuries caused by a defective or dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies (see Brower v County of Suffolk, 185 A.D.3d 774 [2nd Dept 2020]). Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it (see' Lima v Village of Garden City, 131 A.D.3d 947 [2nd Dept 2015]).
The defendant established, prima facie, that it has a prior written notice law, that the alleged condition falls within the ambit of the law and that it had no prior written notice of a defect or hazardous condition at the subject location (see Thompson v Nassau County, 2021 NY Slip Op 06878 [2nd Dept 2021]). The burden now shifts to the plaintiffs to demonstrate either that a question of fact exists as to the notice given or that one of the exceptions applies (see Groninger v Village of Mamaroneck, 17 N.Y.3d 125 [2011]) .
In opposition to the motion, plaintiffs allege that issues of fact remain as to whether the defendant's snow removal efforts created the condition which caused the plaintiff's fall.
Plaintiffs introduce the affidavit of Peter Sammer, a former Apartment Manager for Cardinal Assets. In 2019, Mr. Sammer was working for Cardinal Assets and handling the snow removal at their properties. One of those properties was located at 247 Church Street, City of Poughkeepsie. 247 Church Street was a house next to the parking lot known as 243 Church Street parking lot. It was Mr. Sammer's understanding that the City plowed the lot. It was Mr. Sammer's custom and practice to clear snow on the sidewalk from the 247 Church Street, through the entrance of the parking lot sidewalk. Typically, Mr. Sammer arrived at the property to clear snow before the City arrived to plow the parking lot. Mr. Sammer recalls occasions when he witnessed a mound of snow in the accident location similar to the one as exhibited in plaintiff's Exhibit "1" (Exhibit "1" is a photograph depicting an accumulation of snow in the sidewalk which is adjacent to the City parking lot). On the occasions Mr. Sammer observed the condition which is depicted in plaintiffs' Exhibit "1", it was after he had cleared a path on the sidewalk through the entrance of the sidewalk and prior to the City coming to plow the lot. Mr. Sammer also states that there were times that there would be a mound of snow, similar to Exhibit "1", blocking the sidewalk where it meets the parking lot, after the City had plowed the lot. In his years of experience plowing snow, Mr. Sammer states that plowing snow causes spillover on the sides of the plow. Based upon his observation, he believes that the mounds present at the accident location are caused by City plows, plowing snow through the parking lot.
Plaintiff also offers the affidavit of Duane Contelmo, principal of Valley Lawn Care & Landscaping. Mr. Contelmo states that he has been in the snow removal business for over 40 years. For the past 34 years as principal of Valley Lawn Care & Landscaping, he has performed snow removal services to commercial and residential properties. Mr. Contelmo states that he has examined the photograph attached to the plaintiffs' opposition papers as Exhibit "1". He also reviewed the photographs attached as Exhibit "2", which is a series of pictures showing the plows and vehicles used by the City to effectuate snow removal.
Based upon his years of experience, Mr. Contelmo states that entering a parking lot, with a plow down, will create spill over from the sides of the plow and this will create piles of snow to the sides of the area you are plowing. When a sidewalk cuts across the entrance of a parking lot, the plowing will create mounds of snow on either side of the parking lot entrance, blocking the sidewalks. After plowing the lot, Mr. Contelmo's practice is to exit the plow truck and remove the snow from the sidewalk by hand, using shovels or snow blowers.
Mr. Contelmo states that the shapes of the mounds in the Exhibit "1", as well as its constitution in being packed against the area forming a large barrier where the sidewalk meets the entrance of the parking lot, is indicative of a snow plow traveling through the area. Based upon his experience, Mr. Contelmo knows of no other force or machine which would cause the condition other than a snow plow. It is Mr. Contelmo's opinion, with a reasonable degree of snow plow operating certainty, that the mound in the photographs and on which the plaintiff fell was caused by the City's snow plow. Mr. Contelmo opines that snow plowing operation on the road adjacent to the sidewalk would not cause this condition, as the condition cannot be seen anywhere else down the sidewalk. Additionally, Mr. Contelmo states that plowing the street would not cause the snow to pack tightly, forming a barrier where the sidewalk meets the parking lot.
Contrary to the plaintiffs' contentions, they failed to demonstrate that the alleged snow and/or ice condition was created by the City's affirmative negligence (see Wohlars v Town of Islip, 71 A.D.3d 1007 [2nd Dept 2010]).
Assuming arguendo, that the affidavits submitted in opposition to the defendant's motion were not speculative in nature and founded upon scientific method, data or other empirical proof, plaintiffs still fail to raise a triable issue of fact. The City's failure to remove any snow or ice from the area where the subject accident occurred was passive in nature and does not constitute an affirmative acts of negligence excepting it from the prior written notice requirements (see Morreale v Town of Smithtown, 153 A.D.3d 917 [2nd Dept 2017]; Lima v Village of Garden City, 131 A.D.3d 947 [2nd Dept 2015]; Masotto v Village of Lindenhurst, 100 A.D.3d 718 [2nd Dept 2012]; Ali v Village of Pleasantville, 95 A.D.3d 796 [2nd Dept 2012]; Frullo v Incorporated Vil. Of Rockville Ctr. , 274 A.D.2d 499 [2nd Dept 2000],- DiPaolo v Village of Tuckahoe, 253 A.D.2d 841 [2nd Dept 1998]; Zwielich v Incorporated Vil. of Freeport, 208 A.D.2d 920 [2nd Dept 1994]) . Such acts are acts of omission rather than affirmative acts of negligence (see Alfano v City of New Rochelle, 259 A.D.2d 645 [2nd Dept 1999]). Plaintiffs concede that there is no allegation here that the City made a special use of the parking lot where the accident occurred. Accordingly, the plaintiffs have failed to rebut defendant's prima facie showing.
As summary judgment is warranted as to plaintiff Carolyn Reynolds, the derivative claim of Frank Reynolds must also be dismissed. The Court would note that plaintiff Frank Reynolds neither filed a separate notice of claim nor included his claim in Carolyn Reynolds' notice of claim. Thus, this also subjects his claim to dismissal (see Misek-Falkoff v Metropolitan Tr. Auth. (MTA), 44 A.D.3d 629 [2nd Dept 2007]).
Based upon the foregoing, it is hereby
ORDERED, defendant's motion for summary judgment is granted and plaintiffs' complaint is dismissed.
This constitutes the decision and order of the court.