Crespo v City of Kingston

[*1] Crespo v City of Kingston 2009 NY Slip Op 52860(U) Decided on October 14, 2009 Supreme Court, Ulster County O'Connor, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 14, 2009
Supreme Court, Ulster County

Cathleen Crespo, Plaintiff,

against

City of Kingston, Defendant.



08-1069



COOK, NETTER, CLOONAN, KURTZ & MURPHY, P.C.

Attorneys for Defendant

(Michael T. Cook, Esq., of Counsel)

85 Main Street, P.O. Box 3939

Kingston, New York 12402

BASCH & KEEGAN, LLP

Attorneys for Plaintiffs

(Derek J. Spada, Esq., of Counsel)

307 Clinton Avenue

Kingston, New York 12402

Kimberly A. O'Connor, J.

Plaintiff Cathleen Crespo commenced the instant action to recover monetary damages for personal injuries sustained on August 29, 2007 when she fell after stepping off of the sidewalk [*2]onto a metal sewer grate located on West Union Street in the defendant City of Kingston, County of Ulster, State of New York. Defendant City of Kingston has moved pursuant to CPLR 3212 for an order granting summary judgment in its favor, dismissing the complaint and any and all cross-claims, against it based upon plaintiff's failure to provide prior written notice of the alleged defect as required by Kingston City Charter Section C17-1. Plaintiff opposes the motion, asserting that there are questions of fact regarding whether the defendant created the dangerous condition that caused plaintiff to fall.

The Court is mindful that summary judgment is a drastic remedy which should only be granted when there clearly are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]). It is well-settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; see also Bush v St. Clare's Hosp., 82 NY2d 738, 739 [1993]).

It is only when the moving party has established a right to judgment as a matter of law that the burden shifts to the party opposing the motion to establish, by admissible proof, the existence of a genuine issue of material fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The Court will then view the evidence in a light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, and determine whether there is any triable issue of fact (see Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000], citing Boyce v Vazquez, 249 AD2d 724, 726 [3d Dept 1998]).

Article XVII, Section C17-1 of the Kingston City Charter states, in relevant part, that: [n]o civil action shall be maintained against the city for damages or injuries to person . . . sustained in consequence of any . . . sidewalk, crosswalk, grating, opening, drain or sewer being defective, out of repair, unsafe, dangerous or obstructed unless, prior to the occurrence resulting in such damage or injuries, written notice of the defective, unsafe, dangerous, obstructed condition of such . . . sidewalk, crosswalk, grating, opening, drain or sewer, relating to the particular place, shall have been filed in the office of the City Clerk of this city and there was a failure or neglect to repair, remedy or remove the defect, danger or obstruction within a reasonable time after the filing of such notice.

Notably, a "municipality with a duly enacted prior written notice statute pertaining to its streets, sidewalks and similar public thoroughfares generally cannot be held liable for a dangerous or defective condition in such areas in the absence of prior written notice" (Lifer v City of Kingston, 295 AD2d 695, 696 [3d Dept 2002]; see also Herzog v Schroeder, 9 AD3d 669, 671 [3d Dept 2004]).Here, for the defendant to "sustain its initial burden on the motion for summary judgment, [it is] required to do nothing more than establish that plaintiff failed to comply with the prior written notice provision" (Hendrickson v City of Kingston, 291 AD2d 709, 709 [3d Dept 2002], lv denied 98 NY2d 662 [2002]). Should the defendant make such a showing, "the burden shift[s] to plaintiff to demonstrate the availability of an exception to the notice requirement" (id.). The Court of Appeals "has recognized only two exceptions to the statutory rule requiring prior written notice, namely, where the locality created the defect or hazard [*3]through an affirmative act of negligence . . . and where a special use' confers a special benefit upon the locality" (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999] [further internal citations omitted]).

In support of its motion, defendant has submitted, inter alia, the sworn affidavit of Kathy Janeczek ("Janeczek") , the City Clerk, who avers that she has served as the City Clerk since January 1, 1999, and further that the office of the City Clerk "is charged with the responsibility for receiving and maintaining written notices of defects regarding the condition of city roadways when such a notice of a defective condition of a roadway has been file with the City Clerk's office pursuant to the provision of Section C17-1 of the Kingston City Charter." Janeczek also avers that "[o]nce a written notice of a defective condition of a city roadway has been filed, it is the responsibility of the Department of Public Works to do the necessary work to repair or otherwise remedy the condition." She contends that, upon learning of plaintiff's accident, she made a search of the City Clerk's records to ascertain whether or not prior to or on August 29, 2007, the City Clerk's office had received written notice of any defective condition in the area surrounding the sewer catch basin on West Union Street. According to Janeczek, defendant "did not receive written notice of any defective condition at this location prior to August 29, 2007."

Defendant has also submitted a copy of the plaintiff's complaint, her verified bill of particulars, and the transcript of her examination before trial ("EBT"). Neither the complaint nor her verified bill of particulars allege that plaintiff provided prior written notice as required by Kingston City Charter, Article XVII, § C17-1 (see generally Du Pont v Town of Horseheads, 163 AD2d 643, 644 [3d Dept 1990]). In fact, plaintiff asserts in her bill of particulars that "notice is not an issue as the defendant and/or their agents caused and/or created the dangerous condition," and alleges that defendant was on constructive notice of the dangerous condition. Notwithstanding these assertions, there is no provision in the Kingston City Charter which allows actual or constructive notice to suffice (see Bernier v Town of Huntington, 304 AD2d 513 [2d Dept 2003]; Ferris v County of Suffolk, 174 AD2d 70, 72 [2d Dept 1992]). Furthermore, when asked at her EBT if she knew whether or not the defendant was on any type of notice of the sewer grate condition, plaintiff testified "I have no idea."

Under these circumstances, the Court finds that the defendant has sustained its initial burden on the motion. It was, therefore, incumbent upon the plaintiff to demonstrate that an exception to the notice requirement applies.

In opposition to the motion, plaintiff has submitted a sworn affidavit along with the affirmation of her attorney in which she argues that the defendant created the dangerous condition that caused her to fall, thereby obviating the need for prior written notice. Plaintiff avers that "[t]he storm drain where [she] fell appeared as though the street surrounding it had been re-paved and thereby raised up." She claims that "the [subject] drain was not raised when the surrounding roadway was blacktopped" and that "[a]s a result, there was a substantial drop-off from the surrounding roadway surface down to the metal grate." She further avers that "there are several other storm drains on West Union Street that were raised when the roadway was re-paved and are nearly flush with the roadway surface" and that "[t]he other drains . . . appear to have been recently replaced." She contends, however, that "the drain where [she] fell appears to have been untouched when the street was re-paved."

Plaintiff has also submitted the report and affidavit of Alden G. Gaudreau ("Gaudreau"), [*4]an engineer and consultant who "specialize[s] in accident reconstruction and failure analysis" and who conducted a personal inspection, and reviewed photographs, of the metal sewer grate and surrounding area on West Union Street where plaintiff fell. Following his review and inspection, Gaudreau opined, "within a reasonable degree of engineering certainty[,] that the subject grate was unreasonably unsafe . . . due to the excessive height differential . . .from the top of the curb to the grate." He further opined that "[t]he condition became dangerous when the City of Kingston re-paved the roadway surface without raising the height of the grate, or removing the subject grate and filling in the depression since the drain was no longer in use."

Even fully crediting Gaudreau's report and affidavit, the Court finds that the plaintiff has failed to demonstrate that any affirmative conduct on the part of the defendant caused the dangerous condition of which she complains. In his affidavit, Gaudreau avers that "it appeared that the area surrounding the subject drain had been re-paved at least once, and in doing so, the surrounding paving surface was raised." He further avers that "[t]he grate should have been raised when the new pavement was applied," and claims there "there is no evidence that this occurred." Gaudreau also contends that "it appears that the new pavement was laid around the subject grate, the pavement was profiled or rounded' to meet the grate, and the grate itself was left unadjusted." According to Gaudreau, [t]his caused the substantial height differential between the surrounding blacktopped area and the grate." Moreover, Gaudreau asserts that "ths substantial height differential between the top of the curb and the grate did not appear to have changed much over time."

Initially, the Court notes that these contentions were not set forth in the report prepared by Gaudreau less than two months following plaintiff's accident, and appear to have been raised for the first time in his affidavit in opposition to the instant motion. With respect the contention in his affidavit that the area surrounding the subject sewer grate "had been re-paved at least once," Gaudreau's report indicated only that "a woman who identified herself as the owner of the nearby beauty salon mentioned that the street had not been paved since she was in residence (nine years)." Additionally, the deposition testimony of Steven Gorsline ("Gorsline"), superintendent of the Department of Public Works ("DPW"), submitted by defendant in support of its motion, revealed that Gorsline has been employed by the defendant as the DPW superintendent since 1996 and that while he could not recall when West Union Street was last paved prior to the date of plaintiff's accident, he did not believe it had been paved under his tenure as superintendent.

Furthermore, Gaudreau contends in his affidavit that the pavement surrounding the subject sewer grate was "crumbled and broken," that "[p]aving stones were exposed by the crumbled pavement," that "[t]he catch basin was filled with debris," and that "[o]verall, the pavement was damaged." He also contends in his affidavit that the curb closest to the subject sewer grate appears to have heaved over time as "the direct result of the freezing water trapped in the low area of the non-functioning drain," that "[t]he curb appears as if it as risen . . . due to heaving," and that "[r]esidue on the curb stones shows the presence of standing water." However, he maintains in both his affidavit and in his report that the condition of the curbing as well as the damage to the surrounding pavement "had occurred over a prolonged period of time," and points to no conduct on the part of the defendant that could have been responsible for the damage to the pavement or the heaving of the curb.

Moreover, although the underlying facts supporting his opinion that the sewer grate [*5]should have been raised when the new pavement was applied are set forth in his affidavit (see Romano v Stanley, 90 NY2d 444, 451 [1997]), Gaudreau's makes no reference to any applicable industry standards and/or practices in either his affidavit or his report to support such opinion (see Mosher v Town of Oppenheim, 263 AD2d 605, 606 [3d Dept 1999]; see also Morrison v Flintosh, 163 AD2d 646, 647-648 [3d Dept 1990]; Romano v Stanley, 90 NY2d at 451). Indeed, Gorsline testified at his deposition that the DPW would not address the height differential between the pavement and a sewer grate during "an overlay" of pavement on a street. According to Gorsline's testimony, the level of a sewer grate would only be addressed if the DPW took up all of the blacktop and re-paved the entire street, and Gorsline could not recall that having been done on West Union Street in the five years prior to plaintiff's accident. Gorsline also testified that the DPW does not conduct routine inspections with regard to the sewer grates, that there are no regulations for routine inspections and maintenance of sewer grates, and that there is no standard depth or uniform height required between the surface of the pavement and the top of the grate.

Inasmuch as the plaintiff has demonstrated "only an act of omission [on the part of the City, which] does not constitute affirmative negligence excusing noncompliance with the prior [written] notice requirement" (Young v City of Buffalo, 1 AD3d 1041, 1043 [4th Dept 2003] [internal quotations and further citation omitted]), she has failed to sustain her burden on the motion. As such, summary judgment in favor of the defendant is warranted.

Any remaining arguments have been considered and found to be without merit, or have been rendered moot or academic in light of the foregoing determination.

Accordingly, it is hereby

ORDERED, that defendant's motion for summary judgment is granted, and the complaint is dismissed.

This memorandum constitutes the Decision and Order of the Court. The original Decision and Order is being forwarded to the attorneys for the plaintiff. A copy of this Decision and Order together with all papers on the motion are being forwarded to the Office of the Ulster County Clerk for filing. The signing of this Decision and Order and delivery of a copy of the Decision and Order to the County Clerk shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule with respect to filing, entry, and notice of entry of the original Decision and Order.

SO ORDERED.

ENTER.

Dated:October 14, 2009

Kingston, New York

HON. KIMBERLY A. O'CONNOR

Acting Supreme Court Justice