Poveromo v Town of Cortlandt
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Poveromo v Town of Cortlandt 2013 NY Slip Op 33893(U) July 19, 2013 Supreme Court, Westchester County Docket Number: 55879/2011 Judge: Mary H. Smith Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: WESTCHESTER COUNTY CLERK 07/19/2013 1] INDEX NO. 55879/2011 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 07/19/2013 DECISION AND ORDER FILED I\ 7 & ENTERED ltJ/13 To commence the statutory period of appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this Order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK IAS PART, WESTCHESTER COUNTY Present: HON. MARY H. SMITH Supreme Court Justice -------------------------------------------X PETER POVEROMO and TRICIA POVEROMO, Motion Date: 7/12/13 IND~X NO.: 55879/11 II Plaintiff, -againstTHE TOWN OF CORTLANDT, DANIEL W. DONDERO and KAROL A. DONDERO, Defendants. -------------------------------------------X The following papers numbered 1 to 18 were read on this motion by defendant the Town of Cortlandt for an Order pursuant to CPLR 3211, subdivision (a}, paragraph 7, dismissing Ithis action for failure to state a cause of action, and on : this motion by defendants Dondero for summary judgment dismissihg the complaint ·1 and cross-claims. 1 Papers Numbered 11 I Notice of Motion - Affirmation (Svensson) - Exhs., (A-N) ...... 1-3 Notice of Motion - Affirmation (Code) - Exhs. (A-G) ........... 4-6 11 Answering Affirmation (Randazzo) - Addendum to Affirmation (Randazzo) - Exhs. (A-D) - Affidavit (P. Poveromo) - Affidavit (Pucino) - Exhs. (1-5) - Exh. . ... · 7-13 l · .......... !I The various "sur-replying" papers considered or read. 1 -1- submitte~ ,j have not been [* 2] Answering Affirmation (Randazzo) - Exhs. (1-4) •• !! ••••••••••• 14-15 Answering Affirmation (Svensson) . . . . . . . . . . . . . . . ';I . . . . . . . . . . . 16 'I Replying Affirmation (Svensson) ................ ii........... 17 Replying Affirmation (Code) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 l Upon the foregoing papers, it is hereby Ordered that these :1 motions are disposed of as follows: Plaintiffs personal commenced injuries this allegedly 11 ij action seeking sustained to by recover Peter for Poveromo ("plaintiff"), on June 5, 2012, at approximately~ll:OO a.m., as a result of his plaintiff's being deposition struck by a testimony, vehicle. 2 he is ~ a:: According to self-described :1 experienced motorcycle rider and the accident da y had been sunny 1 II and dry; he had been wearing a helmet, goggles and full clothing. ,1 Plaintiff had been riding in the Town of Cortlandt Manor, planning 'I 1l to visit Town Hall, and at a certain point in his travel he had 11 realized that he had made a wrong turn. Parkway's southern leg, a ·I Driving north on Waterbury road plaintiff neve~ previously had :I traveled upon, plaintiff had intended to turn left onto Waterbury II Parkway's northern leg where Waterbury Parkway i intersects with Fairview Place; there is no traffic control device at the point. 3 2 The owner/driver of that vehicle, Nigel Feriera, is not a defendant in this action, it being represented t6 the Court that said individual(s) had settled with plaintiffs prior to commencement of this action. !\ This road configuration is referred to as type intersection." 3 -2- "~ide-throated I Y- [* 3] !l As plaintiff had approached the Waterbury ParkwJy/Fairview Place ! intersection, traveling 5 to 10 miles per hour, ye~low stripping on the road had directed him to travel more towards Ii the right, which he had found "confusing" continues to the left. because Waterbury :[ Parkway 'I actually Plaintiff stated that he had looked to his 'I - left but that he could not see up Waterbury Parkway because of a 11 row of bushes on his left, located approximately~SO feet north of the intersection, had obscured his view. Plaintiff stated that he i then had looked to the right roadway, i.e., up Fairview Place, but ' ' ' ' th a t h e simi 1 ar 1 y cou ld no t see up Fairview Placei because a large evergreen tree had obscured his view. i" Plaintiff states that he ,I slowly had moved forward, looking first to his right and then again ,I to his left, whereupon he suddenly had been strtck by a vehicle I :1 ii coming from his left on Waterbury Parkway. Plaintiff had testified 'd I that he did not see the oncoming vehicle until hbout one second ;1 before it struck him. According to plaintiff, "if~the tree had not been to my right impeding my view as it did I would have been able i to get that second look to my left without having ',to move out into 11 'I the intersection as far as I did and I would have:been able to see the car be (sic) and would not have been 11 struck.~ Plaintiffs commenced this action, alleging ' th~t " defendant Town I of Cortlandt ("Town") is charged with the affirmative duty to keep its roadways safe and free from hazards, -3- :i that the Town had been I [* 4] . 11 obligated to perform a safety traffic study to determine if its 11 roadways were safe and free from hazards and that, it had failed to ,1 do so, that the Town negligently had re-striped W~terbury Parkway, 11 and that the Town had been negligent in permitting the row of '.I bushes and the 25 foot high evergreen tree to exist which clearly 'I and openly obstructed the visibility of vehicles tkaveling from the I :j south leg of Waterbury Parkway and which had exlsted for such a :i long period of time that the Town knew or should have known of . th e1r . ex1s t ence an d had f a1 1 e d . to do . il anything to remedy the I 11 dangerous condition existing at that intersecti~h. According to 11 plaintiffs, prior notice to the Town of the dangerous condition is 11 I not a condition precedent to suit because the Town had created the I' 11 dangerous condition, and/or had actual or constructive knowledge of 11 same, and the fact that the of fending evergree,n tree had been planted in the Town's right of way and obscured I t~e Fairview Place 11 • and the row of bushes violated Cortlandt Code §3b7-18(E) made it :1 foreseeable that the intersection posed a danger to all on the l roadway. ;1 Defendants Dondero live at 67 Fairview Place. Defendant I 11 Daniel Dondero ("defendant") had testified that h~ had planted the 11 subject evergreen tree in 1989, three feet from the roadway, 11 at 11 which time it had been approximately 10 feet admitted that he let nature take care of it, _/I - tall, and he had II and that he never '! [* 5] previously had trimmed the tree until some tifue subsequent to '! plaintiff's accident. At the time of plaintiff's accident, the 11 11 tree had grown to approximately 25 to 30 feet in h~ight. had testified that, been informed by prior to plaintiff's anyone that the tree accide~t, had he never had 'I presented 'I distance problem, problem. Defendant a sight nor had he personally ever experienced such i i Defendant Dondero had testified that he never had been I 11 issued any violation for obstruction of vision wi~h respect to the Ii subject tree, and that he was unaware of any otherlj accidents having occurred at the subject intersection. Jeffrey Coleman, Director of Environmental i Services, had i testified that he was responsible for overseeing ,ithe Town's roads '1 !I Ii and that he had conducted a road inspection program to identify I roadway conditions. Christopher Pritchard, General Foreman of the 11 Department for defendant Town of Cortlandt I ("Town~), Highway . . had testified that his duties include riding the roadways to jdentify hazards, I including trees that have fallen, are leaning, broken or presenting 'I I "sight issues," and to report same to his supervisors. According 11 to Mr. Pritchard, he had traveled the supj ect Waterbury I 'I Parkway/Fairview Place intersection "a hundred trmes" but that he never had found any site distance obstruction at;I that location. Following the report of the subject accident, Mr. 11 -5- Pritchard had [* 6] testified that he had gone to th . e accident · was unable to ident'f site ~evera1 times and i y any existing hazards alth / had spotted a tree th t ' o~gh he eventually a had been situated 7 to a.i f eet behind the curb · Al th ough he d · d i i not observe anything wrong Jith about the tree h h ! or dangerous ' e ad decided to err on ~ h the side of caution and ave this tree, which was I smaller than and · d situated to the right of the subject evergreen tree, 'i trimmed by his erployee.S. Mr. Pritchard d · d enie his having previously caused the:r larger subject 'I evergreen t b · o e trimmed although he testified that!! it appeared as though .it previously had been trimmed. No complet~ records of the j' 1 1 work allegedly performed by the Hi' ghway D t · epar mentijare kept and no work records pertaining to the trimmi'ng o f th e sm.a 11 er evergreen 'I tree post-accident were produced. lj Defendant Town presently is moving for an Order pursuant to II CPLR 3211 dismissing the complaint arguing that plaintiffs have not stated a viable cause of action because the I/record at bar establishes that the Town did not have prior writtJn notice of any 'I allegedly dangerous limited sight condition existing at the subject ~ . intersection, that the Town had not created the allegedly dangerous II condition, that the Town had not ;J performed any./ work upon ,, the subject area shortly before the accident and that in any event the I) Town is entitled to qualified immunity regarding plaintiffs' claim :1 I ' ' ' of negligent road design and with respect to any action or inaction -6- [* 7] regarding the bushes and tree's trimmings which i~ governmental function. 1· a discretionary 11 At bar is defendant ij T own' s dispositive ' motion seeking dismissal of th e complaint as against . it, the Town: arguing that it did not have . ,, any prior written notice of the all~gedly dangerous defect or dangerous condition, that the Town had n:lot created said condition through any affirmative negligent act, thilat the Town did )I not have constructive knowledge of and defecti'(e or dangerous condition in the roadway, that it did not have)i notice of any I defective road design, that the Town is exempt the Public Duty Rule and that the .sole 1 11 ia b' l ' · 1 ity f rom under I! cause I of plaintiff's I, accident had been his failure to have yielded the right of way to 11 the vehicle which struck him. II Presently, defendants Dondero are moving for summary judgment 'I dismissing the complaint and cross-claims arguinJ that no prima facie case firstly, 11 of negligence by them has been established II since, there is no common law duty of a landowner to control ( :1 vegetation on his/her property for the benefit of users of a public 'I highway and, secondly, in any event, plaintitff' s testimony 11 establishes that any alleged site problem that had~been created by ;I the Donderos' factor offending tree on the right was nof a substantial in causing this accident because the vehicle which had struck plaintiff had come from plaintiff's left. -7- ·11· [* 8] Plaintiffs oppose both motions. lj II , According to plaintiffs, however, the subject tree actually is planted jus~ 3 feet from the 'I roadway, with cascading branches onto the roadwaY itself causing i not only a visual obstruction but the additional hazard of vehicles I 11 having to move over to avoid hit ting the brandhes. Plaintiff . i complains that the Town had in place a plan for inspection of roads but that Mr. Pritchard inexplicably and negligentl~ repeatedly had pr~senting II failed to recognize evergreen tree, the serious site hazard ii by the . that the Town had ordinances in :rplace regarding 'I sight distance, specifically §307-18 (E) , 4 and th~t • it had failed 11 to follow its own laws by ei er avi 'th h 'ng the Donderos trim the tree 11 or by trimming it itself. ,, Plaintiffs of f er th e expert aff idavit of Nich,! olas P. Pucino, ,, 1 a licensed engineer qualified in the field of high~ay engineering, 11 • • maintenance, traffic sa f ety a nd accident analysis .•. Mr. Pucino has ~ 11 reviewed the ent i. rety of t h e inspected the accident site. • re co rd at bar and !,·,/·personally had ; He also has reviewed :,historica 1 maps 11 • • of the subject 1'ntersection which show that, as of ;March 31, 2004, 1 11 : l~ 4This Code section sta t es: . s in all districts,j no At all s~reet interse~tio~ision exceeding thr,ee feet obstructions to motorist t level shall be erected t eet pavemen , in height above s r 'th the triangle formed by or maintained on any lot wit d a line drawrt between 1. of such lo an • . the street 1nes feet distant from points along such street. 1 ine 30 j their point of intersection. ~ -8- [* 9] 1\ 1' 'I there had been no Parkway. striping on the southern A \i 0 f Waterbury ,'I s a result of the new the Town ~eg i striping thereafter performed b y eftaken a study of , apparently without it s f' irst having und ,\ sight-lines M . , r. Pucino not only f. d s that a greater .1 in was created "b . i'\ safety hazard ecause it brought th e obstruction from the evergreen . ; t , iUniform Traffic ree into greater play," but that the Manual of i,\ control Devises called for the placement of a . std~ ~ line and stop sign which would have instructed motorists to com~ to a full stop ~ and where to pull up to maximize the available slght distance. . . in s that the tree appea'rs to be within III Additionally, Mr. Pucino f' d the setback controlled by the Town and that the Town should have ,\ I\ caused the obstructing evergreen on the Donderos' property to have 11 been pruned, his measurements of sai' d tree wi · th its \ extensive • branching establishing that said tree violated cortiandt code §3071\ i 'I 18 .1 (E} . i with a reason~ble degree of Pucino opines i In sum, Mr. engineering certainty that the accident resulted 'from inadequate .I !r sight distance for plaintiff to safely enter the intersection, 11 which sight impediment primarily had been caused bY 'I the Donderos' .I large evergreen tree on the right corner of Fairv'iew Place, that the Town had exacerbated this limited sight failure requirement to enforce the Code's intersections and its stripi~ condition by i! for i!\sight of the southern lpg of '1\ -9- .! lines its at wate~ury [* 10] Parkway without the benefit of its undertakingj a which should have been performed traffic study 'I traffic ~ngineer and, if performed, would have revealed - 11 the necessity for additional traffic control devices at the . t . , in ersection which, if i'n place, would have prevented plaintiff's accident. by a ~ 11 In order for liability to be i~ found, first must be established that a d t 'I u y of care had been owed ~y defendants to , 1 plaint~ff, an~ this is a legal question to be d,termined by the Court in the first instance; if such a duty is fou~~ to exist, only then doe the Court address whether the ensuing aJcident had been foreseeable and whether the 1' . alleged I negligence had been a 11 substantial factor in causing the injury. See Ingenito v. Robert M. Rosen, P.C., 187 A.D.2d 487 (2nd Dept. 1992). i\ Addressing the summary judgment motion of defendants Dondero i first, it long has been settled that there is no 1common law duty 1 . i • owe d b y a landowner to control natural 1 y occurring vegetation on .i his property for the benefit of users of a public highway which are 11 not maintained by the property owner. See Meloe' v. Gardner, 4o i , II A.D.3d 1055 (2nd Dept. 2009); Wheelerv. Buxton Eguipmen t Co., I nc., III 292 A.D.2d 521 187 A. D. 2d (2~ 487 Dept. 2002); Ingenito v. Robert:M. Rosen, P.C., _, (2nd Dept. 1992) . However, wllere regulatory provision imposes upon property owners a specific 11 a duty to prevent Ii vegetation from visually obstructing the roadway, 'I If -10- proof of [* 11] noncompliance with the regulatory provision may give rise to tort liability for any damages proximately caused the~eby. See Lubitz ! Ii " v. Village of Scarsdale, 31 A.D.3d 618 (2nd Dept. 2006) Defendants 11 Donderos' motion for summary judgment is :1 denie~ as there is an !I issue of fact as to whether defendants Dondero in fact previously had maintained the subject evergreen and whethefr they had been I',I negligent in the maintenance of said tree by vio~ating Cortlandt 'i Code §307-18 ( E) and, if so, ' whether such violation had been a 1! proximate cause of the subject accident. See Noller v. Peralta, 94 - - 11 ,! A.D.3d 833(2nd Dept. 2012); Deutcsh v. Davis, 29~ A.D.3d 487 Dept. 2002); Perlak v. Sollin, 291 A.D.2d 540 (2n~ Dept. 2002) ,; (2~ 11 Defendant Donderos' argument that their ,evergreen tree, 11 situated on the intersection's right corner, i 'necessarily II had nothing to do with plaintiff's crash since the ~ehicle that had " 1' struck plaintiff had come from plaintiff's left is rejected, since such an oversimplified reading of the record fail~ to acknowledge 11 i plaintiff's expert's opinion that the conf ig6ration I of the ii II intersection and the markings thereon along with~ the presence of ; ' 11 the large evergreen had resulted in plaintiff's having entered 'I 11 " further into the intersection in order to ensure clearance from his 'I " right, and that it was at that point, just as pl~~ntiff again had turned his head to look left that he had been sti~ck I 1! coming from his left. -11- by a vehicle [* 12] :1 :1 11 11 Addressing next the Town's dispositive motioA, a governmental I body has a non-delegable duty to maintain its roads in a reasonably ii safe condition and liability will flow from the fJilure to correct a hazardous condition or to warn of its existence~ See Sanchez v. Lippincott, 89 A.D.2d 372, 373-374 (4th Dept. 1982). II This duty is I • independent of its duty not to create a d e f ect1veI con d' • it1on. Kiernan v. Thompson, municipality to 73 N. Y. 2d 840 maintain its !I , ( 1988) . roadways in "'.[T] he a duty of :reasonably a safe 'II condition extends to trees which are adjacent to the road and which could reasonably be expected to pose ·a II danger to travelers (citation omitted)," Hillard v. Town of Greenburgh, 301 A.D.2d 572 'I I (2nd Dept. 2003), N.Y.2d 446, 449 see, also Harris v. ( 19 7 7 ) , as we 11 as Village of East Hills, to other I'11 con d' . it1ons I 41 .. wh ic h reasonably could be expected to result in injury~to the public. See Ferrigno v. County of Suffolk, 60 A.D.3d 726 l\(2nd Dept. 2009); 11 Figueroa-Corser v. Town of Cortlandt, 107 A.D.3d 757 (2nd Dept. 2013); Sanchez v. Lippincott, supra; Rinaldi v. State of New York, 49 A.D.2d 361 (3~ Dept. 1975). notice had not The Court finds that, although prior been afforded the Town, plaintiff nevertheless has succeeded in !I raising an issue of fact regarding the narrow exception to the II prior written notice requirement wherein prior w~itten notice is excused when a municipality has or should havel knowledge of a 11 'I -12- IiI [* 13] defective or dangerous condition because it insp~cted the subject II area shortly before unequivocally the accident, and here I the record at bar 'I establishes that Town employee Mr .'I Pritchard' s job II had been to drive around the Town's streets iden~ifying dangerous I ,, conditions thereon and that he had admitted having driven by the 'I . accident location hundreds of times wit h out h' supposedly having 1s :] '! observed the allegedly dangerous limited sight condition caused by the Donderos' large evergreen tree. See Krach v .! Town of Nassau, II 217 A.D.2d 737 (3rd Dept. 1995); Giganti v. Town of Hempstead, 186 A . D . 2 d 6 2 7 ( 2nd Dept . 19 9 2 ) 614 (2nd Dept. 1985). i =K=l=i=m:.:..::e:::..;c::;.:k~_,_V....:.•---=T=-o:o=--w:..:..:n=--=o-=f:..........;G::..:h=e=n=t I 114 A.D.2d 11 defendant Town's motion for Accordingly, ' dismissal whether pursuant to CPLR 3211 or CPLR 3212 is denied. :I The Town however correctly maintains that the row of bushes 11 located approximately 50 feet from the accident intersection falls outside the ambit of Cortlandt Code §307-18 (E) jl and respect to the large evergreen on Donderos' prjperty, special relationship creating a municipal duty to the benefit of a particular class of that, ~xercise 'i individuals,~ with absent a care for no liability to the municipality attaches based upon any violation of Cortlandt Code §307-18 (E) 'I and/or its failure to have enforced same. See 11 O'Connor v. City of New York, 58 N.Y.2d 184, 189 (1983); Noller v. ,, Peralta, 94 A.D.3d 830 (2nd Dept. 2012); Scarsdale, 31 A.D.3d 618 (2nd Dept. 2006). -13- Lubitz v. Village of [* 14] The Court also rejects defendant Town's. arguments that !i plaintiff's claims against the Town necessarily must be dismissed i /1 based upon the governmental function immunity defense which shields ; 'I public entities for discretionary decisions and abtions undertaken and there otherwise existing no special relatio~ship between the i Town and plaintiff. See Valdez v. City of New Yotk, 18 N.Y.3d 69, II 7S-76 (2011); Haddock v. City of New York, 7S N.Y.2d 478, 484-48S 'I i: (1990); see, also Sebastian v. State, 93 N.Y.3d 790 (1999). Here, 'I !! the Court agrees with plaintiff that, in defense o~ its road design and striping, defendant Town has failed to demonstrate entitlement 11 ii to the qualified immunity defense because ;1 there is no proof 11 ;! ,, presented regarding whether the road design/striping decisions had resulted following adequate study. See Weiss v Fote, 7 N.Y.2d S79, S87 (1960); Fan Guan v. State of New York, SS A.D.3d 782, 783784 (2~ Dept. 2008). Additionally, while the Town claims that no ,liability may be imposed upon it based upon plaintiff's claim of "negligent and/or ., II defective road design and/or striping of the road since the Town .; had no prior written notice of said allegedly; negligent road !I 1! condition, the Court finds plaintiff's claim td be outside the purview of the prior written statute because pla~ntiff is arguing that the Town affirmatively had created said~ dangerous site condition, which allegedly had caused plaintiff to ride further to -14- j I [* 15] the right to stay within his striped lane, and w~ich consequently " 11 had caused him to pull further into the roadway i~ order to try and ',;I obtain better visibility, at which point he immediately had been II struck by an oncoming vehicle. Although the record does include i evidence of the absence of any prior II accidents at that !! intersection, as well as Mr. , ;I Pritchard's testimony that he had failed to observe at any time any dangerous road ~ondition at that intersection, same simply raises triable issues of fact as to '! whether Waterbury's southern leg creates a dangerous intersection 11 condition due to its road design and/or striping~ along with the 11 presence of the large evergreen tree, all of whicti allegedly cause 11 !1 traveling vehicles to move to the left and forward in order to 'I improve their right sight visibility but which then causes risk of i injury of oncoming vehicles from the left. Finally, notwithstanding defendant Town's urg'ing that the sole !I proximate cause of the crash had been plaintiff'~ failure to have :I abided Vehicle and Traffic Law section 1141, and 1 to have yielded the right of way to the vehicle traveling :1 south on Waterbury Parkway instead of attempting to turn left in f~ont of him, the Court notes that there can be more than one proximate cause of an i! accident and that a triable issue of fact exists regarding whether i the Town's negligence, if any, had been a proximate cause of this 1i I accident. -15- [* 16] 'i II Any additional arguments not specifically 1 addressed and/or 1 ,i analyzed above have been considered and rejected or not found 11 wo~thy of separate comment. I 11 The parties shall appear in the Settlement IConference Part, 'I Room 1600, at 9:30 a.m., on October 7, 2013. .It:/ '! 2013 Dated: July White Plains, New York I J.S.CJ Hodges, Walsh & Slater, LLP Attys. For Deft. Town 55 Church Street, Suite 211 White Plains, New York 10601 Law Off ice of Thomas K. Moore Attys. For Defts. Dondero 701 Westchester Avenue, Suite lOlW White Plains, New York 10604 John D. Randazzo Attys. For Pltf. 100-3 Chateau Lane Hawthorne, New York 10532 Robert Arena -16-
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