Opinion
Index No. 609475/16 NYSCEF Doc. No. 107 Motion Seq. No. 002 MD
04-22-2022
BEVERLY SZILAGY, Plaintiff, v. TOWN OF SMITHTOWN, COUNTY OF SUFFOLK, CITY OF ST. JAMES, VILLAGE OF SMITHTOWN and LORI JACKSON, Defendants.
Unpublished Opinion
PRESENT: Hon. Carmen Victoria St. George Justice of the Supreme Court
DECISION/ORDER
CARMEN VICTORIA ST. GEORGE, J.S.C.
The following numbered papers were read upon this motion:
Notice of Motion/Order to Show Cause............ 46-66
Answering Papers........................................ 71-81
Reply....................................................... 85; 88-91
The Town of Smithtown moves this Court for summary judgment dismissal of the complaint in this personal injury action brought by plaintiff as the result of her trip and fall on a public sidewalk in front of a residence located in St. James, New York. The incident occurred on June 20, 2015, at approximately 10:30 a.m. Plaintiff opposes the requested relief.
It appears that the only remaining defendant is the Town of Smithtown, s/h/i/a Town of Smithtown, City of St. James, and Village of Smithtown, hereinafter referred to as "TOS."
It is undisputed that the subject sidewalk is the responsibility of the TOS; however, the TOS maintains that it is entitled to summary judgment on the bases that 1) the alleged defect upon which the plaintiff tripped is trivial and does not constitute a dangerous or defective condition; 2) there was a lack of prior written notice; 3) "'the TOS did not have actual or construction (sic) notice of any defects of the said loss location, did not create the defect and did not have a special use for the property."
Affirmation in Support, ¶80.
The 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 N.Y.2d 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 A.D.3d 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 A.D.3d 625 [2d Dept 2005]).
The proponent of a summary judgment motion must tender sufficient evidence to demonstrate the absence any material issue of fact (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 [1985]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Id.) "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986]).
"It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material triable issues of fact (or point to the lack thereof)" (Vega v. Restani, 18 N.Y.3d 499, 505 [2012]). Issue-finding rather than issue determination is the court's function upon a summary judgment motion (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]).
In support of the instant motion, the TOS submits, inter alia, the pleadings, the deposition testimony of the plaintiff, the homeowner, and a representative from the TOS, an affidavit from the TOS Clerk, and photographs of the subject sidewalk.
Trivial Defect
"Generally, whether a dangerous or defective condition exists depends on the particular facts of each case, and is properly a question of fact for the jury unless the defect is trivial as a matter of law" (Milewski v. Washington Mutual, Inc., 88 A.D.3d 853, 855 [2d Dept 2011]; see also Trincere v. County of Suffolk, 90 N.Y.2d 976 [1997]). There is no bright line rule stating the minimum height or depth in order for a defect to be actionable; rather, the width, depth, elevation, irregularity and appearance of the defect, along with the time, place and circumstances surrounding the injury must all be considered in determining the significance of a particular defect (Trincere, supra at 977; see also Acevedo v. City of Yonkers, 185 A.D.3d 762 [2d Dept 2020]; Sullivan v. Colonial Woods Condominiums, 162 A.D.3d 704 [2d Dept 2018]; Das v. Sun Wah Restaurant, 99 A.D.3d 752 [2d Dept 2012]; Pennella v. 277Bronx River Rd. Owners, Inc., 309 A.D.2d 793 [2d Dept 2003]).
"A defendant seeking dismissal of a complaint 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 N.Y.3d 66, 79 [2015]). If a defect is found to be trivial, a property owner may not be held liable (Trincere, supra).
Here, the plaintiff repeatedly testified that the height differential between the flags of the sidewalk where she tripped and fell was between two and three inches. On the day that she fell, plaintiff was attempting to reach the location of a garage sale by walking on the subject sidewalk. She testified that the toe of her right foot impacted the raised sidewalk flag, causing her to fall forward and to her left. Plaintiff fell on her left arm first and she sustained a fractured/broken arm (left radial head fracture). Plaintiff described that the sidewalk flag upon which she tripped was raised two to three inches along the entire approximate four-foot width of the flag.
The homeowner in front of whose house plaintiff tripped and fell testified that there had been a TOS tree located near the curb in front of her house for many years that was overgrown and had raised the subject sidewalk flag because of its roots. This was the only tree located in front of her property. The tree was finally taken down by the TOS after "Hurricane Sandy," which occurred in 2012. According to Ms. Jackson, once a large limb came off the tree as a result of Sandy, she called the TOS and said, in essence, that "the tree needs to go." According to her testimony, she made that statement to an individual who reported to the area in a TOS truck. After that conversation, the tree was removed. The tree removal occurred prior to June 20, 2015, but the sidewalk remained in the same condition after the tree was removed, i.e., with the raised flag.
After the plaintiff's trip and fall, Ms. Jackson made a written complaint to the TOS in September 2015 concerning the condition of the subject sidewalk, which was subsequently repaired by the TOS.
The three photographs submitted by the TOS are of such poor quality that they fail to controvert the plaintiffs testimony concerning the height differential of between two and three inches (NYSCEF Doc. No 59). One of the photographs depicts the street signs, not the sidewalk. Another photograph appears to depict the subject flag with a large black circle drawn on it, but the area circled is very light to white in color, without contrast. The Court observes that this particular photograph depicts what appears to be a valley created by the dipping down of two adjacent flags, with the light-colored/white area raised. The third photograph clearly depicts an appreciable height differential between the flags, with a small black circle drawn on the edge of the raised flag; however, it is taken from a side angle, and from such a distance that this Court cannot determine/conclude that the photograph demonstrates that the height differential was not as plaintiff testified (cf Dick v. Gap, Inc., 16 A.D.3d 615, 616 [2d Dept 2005] [plaintiff described the alleged pavement defect as triangle-shaped and possibly two or three inches deep; photographs of the sidewalk, which she confirmed fairly and accurately represented the accident site, demonstrated that the alleged defect was visibly more shallow]). Notably, the TOS does not offer any evidence that the height differential was less than that described by the plaintiff, which evidence presumably could have been provided since the defect was subsequently repaired by the TOS within approximately three months of the subject incident. Consequently, the Court cannot as a matter of law determine that the alleged defect is trivial.
Furthermore, and although the plaintiff did not testify that the two to three-inch height differential was obstructed from view, the cases relied upon by the defendant TOS for this aspect of their claim that the alleged defect was trivial are inapposite to the facts of this case. The cases cited in opposition concern alleged height differentials that are significantly less than that testified to by the plaintiff in this action; therefore, the fact that the alleged defect in this case may have been unobstructed does not change the established fact that the height differential was two to three times the differentials present in the cases cited by defendant TOS.
The cases cited in paragraphs 40 through 64 concern whether differentials of an inch or less constitute a trap or nuisance, especially when those the incidents giving rise to those actions occurred in fair weather, with nothing obstructing the respective sidewalks.
Accordingly, summary judgment dismissal of the complaint on this ground is not appropriate.
Lack of Written Notice
A municipality that has enacted a prior written notice statute, such as the TOS has done, may not be subjected to liability for personal injuries resulting from a defect absent the required written notice, unless an exception to that requirement applies (Forbes v. City of Nov York, 85 A.D.3d 1106 [2d Dept 2011]). Actual or constructive notice of an allegedly defective condition does not satisfy the prior written notice requirement (Charles v. City of Long Beach, 136 A.D.3d 634 [2d Dept 2016]; Simon v. Incorporated Village of Lynbrook, 116 A.D.3d 692 [2d Dept 2014]).
"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" (Miller v. Millage of East Hampton, 98 A.D.3d 1007, 1008 [2d Dept 2012]; see also Masotto v. Village of Lindenhurst, 100 A.D.3d 718 [2d Dept 2012]). Moreover, "the affirmative negligence exception to the notice requirement [is] limited to work by the [municipality] that immediately results in the existence of a dangerous condition" (Bielecki v. City of Nov York, 14 A.D.3d 301, 301 [1st Dept 2005]; see also Yarborough v. City of Nov York, 10 N.Y.3d 726 [2008]; Oboler v. City of Nov York, 8 N.Y.3d 888 [2007]). Thus, where an alleged defect develops due to natural causes, like erosion of the roadway around a catch basin, this circumstance does not constitute affirmative negligence (Vise v. County of Suffolk, 207 A.D.2d 341 [2d Dept 1994]; see also Michela v. County of Nassau, 176 A.D.2d 707 [2d Dept 1991] [even if municipality planted the tree, the planting and the subsequent failure to control the roots constitutes, at most, nonfeasance, not affirmative negligence]).
There is no evidence of special use in this case.
As to this aspect of defendant's motion, the Court has examined the testimony of Louis Varriale, the TOS's highway construction supervisor, and the affidavit of Vincent Puleo, TOS's Town Clerk. Mr. Varriale testified that he never personally inspected the location where plaintiff tripped and fell, but in connection with this case, he reviewed what he referred to as notice of defects, and records maintained only by the highway department. He did not search the Town Clerk's records.
Mr. Varriale also testified that the TOS's responsibility for repairing and maintaining the sidewalks was under the jurisdiction of the TOS's Parks, Buildings and Grounds Department until approximately 2011, when it was given to the highway department for approximately two years, and then it was given to the engineering department "for a period of time. Dates unknown. And then it came back to the highway department couple of years back." According to Mr. Varriale, the TOS would undertake to repair a sidewalk when a notice of defect is filed in the Clerk's Office. When asked if he knew whether or not the TOS performed any work on the sidewalk located in front of Ms. Jackson's home prior to June 20, 2015, Mr. Varriale answered, "[n]o, I do not."
Mr. Varriale's deposition was held on June 3. 2019.
Mr. Varriale also testified about a phone call database that "would notify us of a possible problem or defect with concrete work within the township of Smithtown." Describing that database, he testified that, "[i]f s just like if you were to take notes on a phone call they go into this database." Mr. Varriale was directed to the date of a phone call record from July 29, 2005 concerning the subject defect at 176 Fifty Acre Rd. The complaint was made by the Jackson/Mauceri household. Mr. Varriale was asked if any investigation or inspection would occur after receiving a complaint such as that one, to which Mr. Varriale answered, "[i]t appears from what I can see that somebody did go out and measure the sidewalk of what they felt was hazardous which was 60 feet by four foot." Mr. Varriale was then asked if anything else occurred after this apparent investigation, but he stated that he "can't testify to what the parks department did in 2005; I can't say what the parks department did. I don't know their procedures. I work for highway."
The actual entry of the phone call data exported from the "Highway/Parks Complaint Database" in printed form was shown to Mr. Varriale concerning the phone complaint of July 29, 2005. He was unable to interpret some notations on the document, but he acknowledged that it appeared that no repair was made; he continued his testimony stating that he did not know; "I have no idea. We don't use this anymore. It's gone. It's water under the bridge;" "it's a dead database."
Further according to Mr. Varrile, the highway department does not use the phone call database anymore, but he did not know when the department stopped using that database. Later in his testimony, he guessed that the highway department stopped using the phone call database "maybe around' 13 or '14." He stated that now "we use only notice of defect because that's the official notice so that these are all irrelevant;" yet, he acknowledged that when the TOS used that phone call database from the parks department "somewhere between 2011 and 2012," they performed all repairs noted therein for which notices of defect had been "marked true." When asked if repairs were made for phone complaints "marked false," Mr. Varriale stated that he "was not running the program so I can't answer that question accurately." Specifically regarding the July 29, 2005 phone complaint, Mr. Varriale was asked if this particular defect which was initially reported in July of 2005 was not repaired until after plaintiffs accident. Mr. Varriale answered that "this was taken by the parks department. I don't know if they did a prior repair there and then repaired it again. . .There may have been a repair in between that period of time. . ." Accordingly, the TOS has not established that it did not commit an affirmative act of negligence, which plaintiff has pled in her notice of claim, complaint, and Bill of Particulars.
Accordingly, the affidavit of Vincent Puleo, the TOS Town Clerk attesting to the fact that he searched the Clerk's records for prior written notice of a defective or dangerous condition at the subject location and found none does not settle the factual issue raised by Mr. Varriale's testimony concerning an affirmative act of negligence. Also, Mr. Puleo's affidavit states that he searched the Clerk's records for nine (9) years prior to June 20, 2015, which would have been from on or about June 20, 2006, up until the date of the subject incident. The Court notes that this nine-year lookback period necessarily excludes the July 29, 2005 complaint made about the hazardous sidewalk that Mr. Varriale acknowledged was investigated and found to be hazardous by the parks department. This observation serves to raise an issue of credibility that cannot be appropriately determined by this Court upon a summary judgment motion.
Because this Court has found that there is a triable issue of fact based upon defendant TOS's moving papers as outlined herein, this Court determines that the TOS has failed to establish its prima facie entitlement to summary judgment as a matter of law.
In view of the foregoing determination, it is unnecessary to determine whether the plaintiffs papers submitted in opposition are sufficient to raise a triable issue of fact (see Levin v Khan, 73 A.D.3d 991 [2d Dept 2010]; Kjono v Penning, 69 A.D.3d 581 [2d Dept 2010]).
The foregoing constitutes the Decision and Order of this Court.