Oppenheim v Village of Great Neck Plaza, Inc.
Annotate this CaseDecided on January 9, 2006
Supreme Court, Nassau County
Judy Oppenheim, Plaintiff,
against
Village of Great Neck Plaza, Inc., METROPOLITAN TRANSPORTATION AUTHORITY, ONG ISLAND RAILROAD, COUNTY OF NASSAU, and TOWN OF NORTH HEMPSTEAD, Defendants.
8726/05
John M. Galasso, J.
This action arises from a trip and fall accident which occurred on October 27, 2004 at approximately 6:40p.m. when plaintiff was on her way home from work and after she got off at the Great Neck Station of the Long Island Railroad (LIRR).
Plaintiff alleges that she tripped over an expansion joint on the pedestrian sidewalk on the Middle Neck Road overpass in close proximity to the stairway leading to the LIRR platform.
Defendant Village of Great Neck Plaza, Inc. (Village) has not contested that this site is located in the geographical confines of the Village. Plaintiff served notices of claim upon the Village, LIRR and defendant Metropolitan Transportation Authority (MTA). A General Municipal Law §50(h) hearing was held on February 3, 2005.
Plaintiff testified that she traveled this path going home from work for approximately the last year and a half and did not recall ever seeing the expansion joint before. The photographs entered into
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evidence at the hearing show that the joint traverses the entire sidewalk and is at an angle to the street as opposed to being perpendicular, as nearby sidewalk demarcations appear. That portion of the sidewalk on the overpass is made of cement, as distinguished from the brick sidewalk in front of business establishments just a few feet from the LIRR stairway entrance.
Before the Court are motions pursuant to CPLR §3212 for an order granting summary judgment and dismissal of the complaint and all cross-claims against the Village, the MTA, the LIRR and the
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County of Nassau. Defendant Town of North Hempstead has not opposed any of the applications.
Turning to the County of Nassau's cross-motion first (Seq. #003), the County asserts that
§12-4.0(e) of the Administrative Code of the County of Nassau provides that prior written notice of an alleged defective or unsafe condition must be given to the Office of the County Attorney before any civil action may be maintained. The County submits the affidavit of Veronica Fox of the County Attorney's Claims Division who maintains the files containing notices of claim and who personally searched for and found no prior written notice for the five years preceding plaintiff's fall.
In addition, the County submits an affidavit from Donna Boyle who is a civil engineer at the Department of Public Works and is assigned to their Bridge Section. She states that the bridge overpass was constructed in approximately 1935 and there are no records to indicate that the location has been altered since its original construction. Further, upon a search of the records kept by the Department of Public Works she could locate no records for the five years preceding the accident indicating that Nassau County performed any work at that location or that the Public Works Department itself received any complaints or notices. Moreover, in its biannual inspection of the site mandated by federal law, on August 19, 2003 the New York State Department of Transportation found no condition that would affect pedestrian safety.
Finally, as an engineer, after inspection of the location Ms. Boyle attested that the expansion joint area was built in conformance with standards and accepted bridge construction practices and, specifically, that the expansion joint as designed is not a defective condition.
The County argues that without prior written notice, a condition precedent to maintaining this action, no liability may be imposed on the County (Zaser v. County of Nassau, 171 AD2d 743). It also asserts that the two recognized exceptions to the requirement, where the municipality created the defective condition through an affirmative act of negligence or where a special use confers a special benefit upon the County do not apply here (see Amabile v. City of Buffalo, 93 [*3]NY2d 471).
Although it has not been ascertained yet if the County participated in the design or construction of the overpass 70 years ago, the County maintains that the issue is irrelevant since it enjoys a qualified immunity with respect to injuries arising out of an alleged defective sidewalk plan, citing Weiss v. Fote, 7NY 2d 579 and Urquhart v. City of Ogdensburg, 91 NY 67. In any event, as noted above, defendant Nassau argues that their expert in bridge design and construction standards attested that the sidewalk portion of the overpass with the expansion joint were in conformity with all standard and accepted practices.
Plaintiff opposes Nassau's, and indeed, all three motions as premature since plaintiff has not had a reasonable opportunity for disclosure prior the motion (Baron v. Incorporated Village Freeport, 143 AD2d 792; Campbell v. City of New York, 220 AD2d 476).
Specifically as to the County, plaintiff argues that when she sought construction/renovation records for the preceding ten years, the County refused stating that the ten-year period was overbroad and that the demand sought records relating to the roadway and not just for the sidewalk where the accident occurred.
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As to the sidewalk, plaintiff asked for, and was informed, that there were no records involving accidents, claims, maintenance or repairs for a three-year period. For purposes of this motion the County expanded its search to five years and found nothing.
In opposition to all three motions, plaintiff submits the affidavit of William Marletta, a certified safety professional. Mr. Marletta attested that the sidewalk area and the extension joint were part of the framework and/or abutment of the bridge that existed for a very long period of time so that the defendants knew or should have known of the dangerous and defective condition. Mr. Maletta attributed the condition to the joint's construction and not to a settling process that occurs over time.
Plaintiff has raised a material issue of fact concerning the County's liability warranting the denial of summary judgment at this juncture.
It is uncontroverted that the County did not have actual notice of the condition as required. Additional efforts at discovery by plaintiff in that regard would likely be fruitless. Furthermore, in contrast to the Baron case cited by plaintiff, plaintiff had a reasonable opportunity for disclosure from the County prior to the County making the instant application.
Moreover, the theory of constructive notice to a defective condition does not apply to a case such [*4]as this. Thus, plaintiff's expert's opinion that the County should have known about the defective sidewalk condition is without moment (Zash v. County of Nassau, 171 AD2d 743).
Plaintiff's second contention that the County caused the defect in the sidewalk by its own affirmation negligence and therefore no notice was required to impose liability is, however, supported by plaintiff's expert (Galante v. Villages of Sea Cliff, 13 AD3d 577). The Galante decision was the result of a summary judgment motion brought by the County and countered by plaintiff's papers containing, in effect, an application for further discovery. The plaintiff's expert merely opined that the uplift in the concrete was consistent with improper installation and/or design error and did not state that this event was caused by the County's actions.
Here, plaintiff's' expert definitively attested that the condition was caused by negligent construction
rather than the mere passage of time. While he might not be an expert on bridge construction and design, he is an expert in sidewalk safety conditions and is qualified at the very least to distinguish between negligent construction and the settling time-related process. That plaintiff may require an additional expert at trial does not impact the determination that plaintiff has raised a material issue of fact as to affirmative tortuous construction.
The County's argument that it is entitled to rely upon the doctrine of qualified governmental immunity, citing Weiss v.Fota, supra thereby rendering any negligence on its part academic is distinguishable from the case at bar.
In Weiss, Judge Fuld explored the concept of a municipality or its agent being held liable for approving as reasonably safe the design of a project, and determined that lawfully authorized planning by government bodies is an issue not to be left to a jury absent total failure of the municipality to exercise due are. This concept still applies today (cf. Epstein v. State of New York,
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124 AD2d 544, 547).
However, in the action at bar, it is the construction, not the planning of the sidewalk that is alleged to be negligent, a factual distinction still of some import in the Appellate Division, Second Department (Galante v. Village of Sea Cliff, supra; cf. Corey v. Town of Huntington, 9 AD3d 345).
The County admits that the subject area falls under the County's jurisdiction. Yet no discovery has taken place regarding which entity or entities constructed the bridge pedestrian sidewalk as opposed being responsible for its maintenance or repair. Since it appears that the sidewalk and [*5]roadway may have been constructed at the same time, Nassau County is directed to comply with any discovery request regarding the original construction in 1935 as it applies to the entire overpass. In addition, since plaintiff recalled some construction in that area several years ago, the County is directed to expand its search for construction and/or repair to ten years prior to the accident if such records are still maintained by the County.
Once all discovery is completed the County may again move for summary judgment wherein plaintiff will have the burden of proof to offer evidentiary facts sufficient to create a bona fide issue regarding the County's tortuous role in creating or constructing the sidewalk area at issue, thereby exempting plaintiff from the prior notice requirements.
The Village of Great Neck Plaza also brings a motion to dismiss (Seq.#001) for similar reasons. However, the Village submits an affidavit from Michael Sweeney, the Commissioner of Public Services for the Village stating that the Village neither owns nor maintains the roadway and railroad overpass, did not participate in its construction, and had no authority to change or modify the sidewalk.
Furthermore, Mr. Sweeney reviewed all relevant files in the form of any written notices or notices of claim for this location and none was found. The search was for a period of five years since files must be maintained for that period per New York State Law.
Plaintiff's opposition focuses on the Village's description of the expansion joint's condition as "trivial". However, Mr. Sweeney's opinion in this regard as is his opinion that it was open and obvious is irrelevant to the determination of this motion. If the Village has no notice and did not construct the overpass, it owes no duty to plaintiff notwithstanding that it is in the Village's geographical confines. Plaintiff fails to rebut the Village's evidentiary showing.
Finally, the Court determines that there is no likelihood that further discovery would leave to evidence sufficient to defeat the Village's motion (Spatola v. Gelco Corp., 5 AD3d 469).
Accordingly, the complaint is dismissed as to defendant Village of Great Neck Plaza, Inc. as are all cross-claims.
Defendant MTA also asserts that plaintiff's complaint fails to state a cause of action (Seq.#002).
The MTA argues that they are not liable for any negligence of the LIRR (Public Authorities Law §1276 and 1266(5); Railroad Law §93; see Noonan v. LIRR, 158 AD2d 392).
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However, as discussed above, the action is not only for the improper operation, maintenance and [*6]control of a LIRR facility, the overpass, but also for its negligent construction.
Although the MTA was not in operation when the overpass was originally constructed, having been established in 1965 by the Legislature and now codified in Title 11 of the Public Authorities Law, it has the authority to alter and improve railroad passenger stations, including overpasses (e.g., MTA v. Village of Tuckahoe, 67 Misc 2d 895, aff'd 38 AD2d 570).
In this regard, as in the County of Nassau, discovery has yet to be completed to determine if the MTA participated in any re-construction project.
Likewise, LIRR's application refers to maintenance and repair, not construction or re-construction. LIRR may participate in construction under a joint service arrangement with the MTA (MTA vs. Village of Tuckahoe, supra).
As to the maintenance /repair portion of the complaint, Railroad Law §93 states that the framework and abutments of an overhead bridge shall be maintained and kept in repair by the railroad corporation. LIRR submits no affidavit pertaining to a records search. Plaintiff, however, submits in the affidavit of her expert that the location in question is an abutment, thus successfully raising an issue of fact.
Accordingly, both the MTA's and the LIRR's motion for summary judgment is denied.
With the exception of the Village, further discovery is required from all defendants with respect to the construction or reconstruction issues. LIRR must also provide discovery as plaintiff requests regarding maintenance and/or repair as well as prior notice issues.
Dated: January 9, 2006...........................................................J.S.C.
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