Opinion
1079 CA 15-00254.
10-09-2015
Leo Joseph SWIETLIKOWSKI, Plaintiff–Respondent, v. VILLAGE OF HERKIMER, Defendant–Appellant.
Murphy, Burns, Barber & Murphy, LLP, Albany (Stephen M. Groudine of Counsel), for Defendant–Appellant. Michael A. Castle, Herkimer (Scott H. Oberman of Counsel), for Plaintiff–Respondent.
Murphy, Burns, Barber & Murphy, LLP, Albany (Stephen M. Groudine of Counsel), for Defendant–Appellant.
Michael A. Castle, Herkimer (Scott H. Oberman of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
Opinion
MEMORANDUM:Plaintiff commenced this action seeking damages for injuries he sustained when he fell from his bicycle while riding on a road owned and maintained by defendant. According to plaintiff, the accident was caused by a defective condition in the road. Supreme Court denied defendant's motion for summary judgment dismissing the complaint, and we affirm. Contrary to defendant's contention, the court properly denied that part of its motion seeking dismissal of the complaint on the ground that it did not receive prior written notice of any defective or dangerous condition. Defendant asserted on its motion, and plaintiff conceded, that defendant did not have any such notice (see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; see generally Village Law § 6–628 ). Therefore, this case turns on whether defendant created the allegedly defective or dangerous condition with an “affirmative act of negligence” (Groninger, 17 N.Y.3d at 127, 927 N.Y.S.2d 304, 950 N.E.2d 908 [internal quotation marks omitted] ). Here, plaintiff's expert opined that the dangerous condition was caused by the intentional removal of paving material from the area adjacent to the water valve box cover at the time the roadway was resurfaced, and we therefore conclude that “plaintiff raised an issue of fact whether defendant created a dangerous condition that caused the accident” (Hawley v. Town of Ovid, 108 A.D.3d 1034, 1035, 969 N.Y.S.2d 641 ; see Carpenter v. Rapini, 35 A.D.3d 1202, 1203, 830 N.Y.S.2d 398 ; Smith v. City of Syracuse, 298 A.D.2d 842, 842–843, 747 N.Y.S.2d 876 ).
Defendant further contends that it was entitled to summary judgment dismissing the complaint because plaintiff could not identify the cause of his fall. We reject that contention. Although a defendant “ ‘may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall’ without engaging in speculation” (Dixon v. Superior Discounts & Custom Muffler, 118 A.D.3d 1487, 1487, 988 N.Y.S.2d 817 ; see Hunt v. Meyers, 63 A.D.3d 685, 685, 879 N.Y.S.2d 725, lv. denied 13 N.Y.3d 712, 2009 WL 4017058 ), we conclude that defendant failed to meet that burden here (see Smart v. Zambito, 85 A.D.3d 1721, 1721, 926 N.Y.S.2d 245 ; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). In support of its motion, defendant submitted plaintiff's deposition testimony and plaintiff's testimony from a hearing pursuant to General Municipal Law § 50–h, in which plaintiff testified that the accident occurred after the front wheel of the bicycle hit something on the roadway. Although plaintiff could not remember seeing the object with which he collided, he testified that the accident occurred in the immediate vicinity of a gap in the pavement adjacent to a water valve box cover, “thereby rendering any other potential cause of [his] fall ‘sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence’ ” (Nolan v. Onondaga County, 61 A.D.3d 1431, 1432, 876 N.Y.S.2d 825 ; see Paternostro v. Advance Sanitation, Inc., 126 A.D.3d 1376, 1377, 5 N.Y.S.3d 768 ; Dixon, 118 A.D.3d at 1488, 988 N.Y.S.2d 817 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.