Opinion
8480/04.
Decided October 2, 2008.
Feder Rodney, PLLC, Attorneys for Plaintiff, Brooklyn, NY.
Corey E. Klein, Esq., Attorney for Defendant, City Hall, Long Beach, NY.
Defendant, THE CITY OF LONG BEACH (hereinafter referred to as the "CITY") moves for an order, pursuant to CPLR § 3212, granting them summary judgment dismissing plaintiff's complaint. The PLAINTIFF, IRWIN A RICHMOND (hereinafter referred to as "RICHMOND") opposes the motion, which is determined as follows:
Background
In this negligence action, plaintiff RICHMOND alleges that he sustained serious personal injuries on April 25, 2003, including a fracture of the fifth metacarpal of his right hand, as he walked in a CITY parking lot directly across the street from the Long Beach Post Office on E. Park Avenue. Plaintiff claims that the parking lot had been renovated by the CITY and was completed in September 2002 and included a concrete strip which bordered the north and south side of the parking lot, which were covered by brick pavers and contained tree pits approximately five feet by five feet which were several feet apart. Trees were planted in the tree pits, which were filled with soil and mulch by he CITY in November 2002.
Plaintiff testified at his deposition that he fell while walking through the CITY parking lot "as he was exiting the 4th tree pit on an irregular, uneven, and broken walkway". He claimed that the tree pit surface was pitted and was covered with spongy mulch; that the bricks around the pit were uneven and not level with the adjacent mulch; that there was three (3) inch difference between the mulch and the surface of the bricks. He claimed that when he stepped down with his right foot, he sunk down in the mulch, three (3) to five (5) inches, which caused him to lose his balance, and when he attempted to step back onto the surrounding brickwork, he tripped and fell. It appears that as a result of the accident, he sustained a fracture to his right hand. It is plaintiff's position that the accident was caused by the negligence and carelessness of the CITY and its agents, in the maintenance, repair, design, renovation and control of the walkway and parking lot, without any contributing negligence on plaintiff's part
In support of the motion to dismiss, defendants annex the deposition transcripts of the plaintiff in which he testified that, rather than walking in the parking lot to his car, he stepped up on the concrete strip and began walking in and out of the tree pits with the intention of walking to his car. RICHMOND stated that, after walking through one (1) tree pit, he continued walking to the next tree pit, with his left foot on the curb and his right foot in the tree pit and, when he raised his right foot from the tree pit it caught on the brick causing him to fall. The plaintiff attributed his fall to a depression in the tree pit which created an uneven condition. He acknowledged that he had walked on the bricked area approximately 30-40 times prior to the date of his fall. Annexed to the moving papers as Exhibit "E" are a series of photographs that depict the subject area at the time of the accident.
The CITY seeks dismissal of the action as a matter of law, based upon two distinct points: 1) that the CITY received no prior written notice of the alleged defect prior to plaintiff's fall which is required pursuant to § 256A(1) of the CITY Charter, and 2) that the tree pit was readily observable and not inherently dangerous. It is the CITY's position that there is no duty to protect or warn against an open and obvious condition, which as a matter of law is not inherently dangerous, citing Lee v Sung Whun Oh , 3 AD3d 473 , 771 NYS2d 134 (2nd Dept. 2004); Cupo v. Karfunkel , 1 AD3d 48 , 767 NYS2d 40 (2nd Dept. 2003) and Martinez v. City of New York, 307 AD2d 989, 763 NYS2d 663 (2nd Dept. 2003). Counsel for the CITY argues that there is no duty to protect or warn against conditions that are in plain view, open, obvious and readily observable by those employing the reasonable use of their senses, citing Pinero v Rite Aid of NY, Inc., 294 AD2d 251, 743 NYS2d 21 (1st Dept. 2002), affd. 99 NY2d 541. Counsel for the CITY urges that when the condition is open and obvious and not inherently dangerous, the complaint must be dismissed as a matter of law. Moreover, counsel for the CITY states that a search of the records of the CITY Commissioner of Public Works confirms that no prior written notice of the condition complained of herein had ever been received by the CITY. The CITY urges that the complaint be dismissed in its entirety.
In opposition to the motion, counsel for plaintiff asserts that the condition was not readily observable because the depressed surface was covered with spongy mulch, that is a perfect example of a "camouflaged trap". Moreover, counsel points out that prior written notice to the CITY was not required because the CITY caused and created the dangerous and defective condition when it renovated the parking lot. Plaintiff claims that the parking lot was negligently maintained as well as negligently designed and constructed. by the CITY's Department of Public Works or Maintenance Department. Counsel asserts that the CITY negligently used mulch knowing full well that it decomposes and loses its consistency rather than using grass, which required maintenance. Plaintiff urges that the motion should be denied in its entirety.
The Law
In viewing motions for summary judgment, it is well settled that summary judgment is a drastic remedy which may only be granted where there is no clear triable issue of fact ( see, Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131, 320 NE2d 853 [C.A. 1974]; Mosheyev v Pilevsky, 283 AD2d 469, 725 NYS2d 206 [2nd Dept. 2001]. Indeed, "[e]ven the color of a triable issue, forecloses the remedy" Rudnitsky v Robbins, 191 AD2d 488, 594 NYS2d 354 [2nd Dept. 1993]). Moreover "[i]t is axiomatic that summary judgment requires issue finding rather than issue-determination and that resolution of issues of credibility is not appropriate" ( Greco v Posillico, 290 AD2d 532, 736 NYS2d 418 [2nd Dept. 2002]; Judice v DeAngelo, 272 AD2d 583, 709 NYS2d 817 [2nd Dept. 2000]; see also S.J. Capelin Associates, Inc. v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478, 313 NE2d 776 [C.A. 1974]). Further, on a motion for summary judgment, the submissions of the opposing party's pleadings must be accepted as true ( see Glover v City of New York, 298 AD2d 428, 748 NYS2d 393 [2nd Dept. 2002]). As is often stated, the facts must be viewed in a light most favorable to the non-moving party. (See, Mosheyev v Pilevsky, supra). The burden on the moving party for summary judgment is to demonstrate a prime facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact ( Ayotte v Gervasio, 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 [C.A. 1993]; Winegrad v New York University Medical Center, 64 NY2d 851, 487 NYS2d 316, 476 NE2d 642 (C.A. 1985); Drago v King, 283 AD2d 603, 725 NYS2d 859 [2nd Dept. 2001]). If the initial burden is met, the burden then shifts to the non-moving party to come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. (CPLR § 3212, subd [b]; see also GTF Marketing, Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 498 NYS2d 786, 489 NE2d 755 [C.A. 1985]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595, 404 NE2d 718 [C.A. 1980]). The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. ( Mgrditchian v Donato, 141 AD2d 513, 529 NYS2d 134 [2nd Dept. 1988]).
Absent prior written notice of a defect, a municipality may be cast in liability for a dangerous condition on its streets only if the municipality created the condition through an act of negligence or special use that conferred a benefit upon the locality. See Amabile v City of Buffalo, 93 NY2d 471, 693 NYS2d 77, 715 NE2d 104 (C.A. 1999); Lauer v Great South Bay Seafood Co., Ltd., 299 AD2d 325, 750 NYS2d 305 (2nd Dept. 2002). The mere settling of a roadway that creates a depression does not constitute an affirmative act of negligence. Cf., Ferreira v County of Orange , 34 AD3d 724 , 825 NYS2d 122 (2nd Dept. 2006); Gold v County of Westchester , 15 AD3d 439 , 790 NYS2d 675 (2nd Dept. 2005).
Prior written notice of an alleged defect is a necessary prerequisite to imposing liability upon a municipality for an allegedly defective and/or dangerous sidewalk condition ( Frullo v Incorporated Village of Rockville Centre, supra; Brooks v Village of Babylon, 251 AD2d 526, 674 NYS2d 726 [2nd Dept. 1998]). Prior notification laws are a valid exercise of legislative authority. The legislature has made plain its judgment that a municipality should be protected from liability in these circumstances until it has received written notice of the defect or obstruction. Amabile v City of Buffalo, supra . There are only two (2) exceptions to the statutory rule requiring prior written notice, namely where the locality created the defect or hazard through an affirmative act of negligence or where a "special use" confers a special benefit upon the locality. Amabile v City of Buffalo, supra . A municipality makes a prima facie showing of its entitlement to judgment as a matter of law by establishing that it neither received the requisite prior written notice of the alleged defect, nor bore responsibility for the creation of the alleged defect ( Amabile v City of Buffalo, supra).
In an action for negligence, the law provides that a defendant is not an insurer, and negligence may not be inferred solely from the happening of an accident, but rather claimant must prove that the defendant breached a duty of care owed to claimant and that the breach of duty proximately caused the claimant's injury. Valentine v State of New York, 192 Misc 2d 706, 747 NYS2d 282 (Court of Claims, 2002). Patrick v Bally's Total Fitness, 292 AD2d 433, 739 NYS2d 186 (2nd Dept. 2002), instructs that, while the owner or possessor of property has a duty to maintain the property in a reasonably safe condition and may be held liable for injures arising from a "dangerous condition" on the property, liability attaches to the owner or possessor only if the owner possessor created the condition or had actual knowledge or constructive notice of it, and a reasonable time to remedy it. To constitute constructive notice, "a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it". Gordon v American Museum of Natural History, 67 NY2d 835, 501 NYS2d 646, 492 NE2d 774 (C.A. 1986).
In Trincere v County of Suffolk, 90 NY2d 976, 665 NYS2d 615, 688 NE2d 489 (C.A. 1997), the Court of Appeals held that whether a defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury. However, in some instances, the trivial nature of the defect may loom larger than another element. In Trincere, a case that dealt with a defective sidewalk slab, the Court rejected a mechanistic approach based exclusively on the dimension of the sidewalk defect in favor of consideration of the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury, and found that no triable issue of fact existed against the municipality based upon plaintiff's fall on a ½ inch raised slab. Cases which have found that the alleged defect upon which plaintiff tripped was too trivial to be actionable are, as follows: Hagood v City of New York , 13 AD3d 413 , 785 NYS2d 924 (2nd Dept. 2004); Morris v Geenburgh Central School District No. 7, 5 AD3d 567, 774 NYS2d 74 (2nd Dept. 2004); Penella v 277 Bronx River Road Owners, Inc., 309 AD2d 793, 765 NYS2d 531 (2nd Dept. 2003); Tallis v Fleet Bank, 306 AD2d 400, 761 NYS2d 287 (2nd Dept. 2003). However, [e]ven a trivial defect can sometimes have the characteristics of a snare or trap". Defazio v Hage, 272 AD2d 964, 708 NYS2d 657 (4th Dept. 2000)
Discussion
After a careful reading of the submissions herein, it is the judgment of the Court that plaintiff has failed to come forward with sufficient evidence to defeat defendants' motion for summary judgment. The plaintiff argues that the alleged defect was not readily observable and that "the decomposing spongy mulch" in the tree pit was caused by the CITY's negligent maintenance and design. Noticeably absent from the opposition papers is any expert affidavit as to the alleged nature and cause of the defect and the CITY's culpability therefore. See, Hendrickson v City of Kingston, 291 AD2d 709, 738 NYS2d 433 (3rd Dept. 2002). Plaintiff's unsubstantiated allegations that the CITY created the defect, made in the affirmation of an attorney who has no personal knowledge of the facts, is insufficient to defeat the CITY's motion for summary judgment. Hendrikson v City of Kingston, supra . A review of the pictures annexed to the opposition papers at Exhibit "3" allegedly depicts the condition in the parking lot on the date of the accident and leads the Court to conclude that the tree pits along the curb in the parking lot do not constitute a dangerous condition that would lead a prudent landowner to anticipate trip and fall accidents but, rather, are too trivial to be actionable. The Court notes that contrary to plaintiff's assertion, the surrounding bricks were not broken but were even and level. Viewing the photos taken on plaintiff's behalf together with the deposition testimony of the parties and witnesses herein, the Court concludes that the alleged defective condition, which consists of a light mulch around newly planted trees, is open and obvious and is not inherently dangerous as a matter of law. Nor does it have the characteristics of a snare or a trap.
Although the creation argument is an exception to the prior written notice rule, there is no evidence presented that the alleged difference in height between the mulch and the surrounding brickwork, caused by decomposing or pitted mulch, was affirmatively created by the CITY, rather than the result of natural settlement of the mulch in relation to the brick work over time . See, Gagnon v City of Saratoga Springs , 51 AD3d 1096 , 858 NYS2d 797 (3rd Dept. 2008); Galante v Village of Sea Cliff , 13 AD3d 577 , 787 NYS2d 376 (2nd Dept. 2004); Corey v Town of Huntington , 9 AD3d 345 , 780 NYS2d 156 (2nd Dept. 2004). Defects that evolve over time as a result of wear and tear, deterioration and or caused by environmental factors are not exceptions to the prior written notice rule . See, Yarborough v City of New York , 10 NY3d 726 , 853 NYS2d 261, 892 NE2d 873 (C.A. 2008); Corey v Town of Huntington, supra .
There is no evidence presented that the area in question was negligently designed or that said negligent design was the cause of plaintiff's fall. Plaintiff does not cite any law or statute that requires a municipality to surround its trees with grass, and without any competent evidence regarding the creation of the alleged defect or "dangerous condition", plaintiff's arguments are insufficient to defeat the CITY'S motion for summary judgment.
Conclusion
Based upon the foregoing, it is hereby
ORDERED, that the CITY's motion for an order dismissing the complaint and granting them summary judgment against the plaintiff isgranted and the case is dismissed. All further requested relief not specifically granted is denied.
This constitutes the decision and order of the Court.