Varricchio v County of Suffolk
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Varricchio v County of Suffolk 2016 NY Slip Op 32436(U) December 5, 2016 Supreme Court, Suffolk County Docket Number: 09-45796 Judge: Ralph T. Gazzillo 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. [* 1] SHORT FORM ORDER INDEX No. 09-45796 CAL. No. 16-00011 OT SUPREME COURT - STATE OF NEW YORK I.A.S. PART 6 - SUFFOLK COUNTY PRESENT: Hon. RALPH T. GAZZILLO Acting Justice of the Supreme Com1 MOTION DATE MOTION DATE ADJ. DATE 5-23-16 (003) 10-3-16 (004) 10-3-16 Mot. Seq.# 003 - MG # 004 - MD ---------------------------------------------------------------)( JOSEPH VARRICCHIO and JOHANNA V ARRICCHIO, Plaintiffs, LAW OFFICE OF COl lEN & JAFFE Attorney for Plaintiffs 2001 Marcus Avenue, Suite W295 Lake Success, New York 11042 SUfFOLK COUNTY ATTORNEY Attorney for Defendant Suffolk County H. Lee Dennison Building l 00 Veterans Highway Hauppauge, New York 11788 - against - THE COUNTY OF SUFFOLK and THE TOWN OF ISLIP, Defendants. JAKUBOWSKI, ROBERTSON , MAFFEI, GOLDSMITH & TARTAGLIA, LLP Attorney for Defendant Islip 969 Jericho Turnpike Saint James, New York 11780 ---------------------------------------------------------------)( Upon the fo llowing papers numbered I to 33 read on these motions for summary judgment; Notice of Motion/ Order Show Cause and supporting papers...!..:..!1; Notice of Cross Motion and supporting papers 18-28 ; Answering Affidavits and supporting papers 29-30 ; Replying Affidavits and supporting papers 31-33 ; Other_; (1111d tttfe1 hett1 i11g cotm~c:I i11 ~t1ppo1t 311d opposed to tlte motion) it is, to ORDERED that the motion by the defendant Town oflslip for summary judgment d ismissing the complaint it is granted ; and it is further ORDERED that the cross motion by the plaintiffs for summary judgment dismissing the sixth and seventh affirmative defenses asserted by the defendant Town of Islip is denied. [* 2] VmTicchio v Town oflslip lndcx No. 09-45796 Page 2 This is an action to recover damages for personal injuries allegedly sustained by plaintiff Joseph Varricchio (the plaintiff) on December 22, 2008, at approximately 5: 15 p.m., when he slipped and fell on ice in the street in front of the premises known as 160 Wurz Street, Brentwood, in the Town of Islip. County of Suffolk. It is alleged that the defendant Town oflslip was negligent in that it allowed a dangerous condition to develop, exist and remain. The plaintiff Johanna Varricchio seeks damages for loss of services. The defendant Town oflslip (the Town) now moves for summary judgment dismissing the complaint on lhe ground it lacked prior written notice of the alleged dangerous condition which caused the plaintiffs accident and injuries, and that it was free from other negligence. In support of the motion, the Town submits, inter alia, its attorney's affirmation, the pleadings. the verified bills of particulars. the deposition transcripts of the plaintiffs and three Town employees, a copy of a Department of Public Works service notice, the affidavit of Thomas Owens, dated April 12, 2016, and the affidavit of Teresa Bogardt. dated March 10, 2016. The plaintiffs oppose the Town's motion and cross-move for summary judgment dismissing the Town 's sixth and seventh affirmative defenses. In support thereof, the plaintiffs submit their attorney's affirmation, the pleadings, their verified bills of particulars, a Department of Public Works service notice, a Town Highway Department drainage request with sketch. a printout of a 2009 telephone complaint. and the affidavit of Richard Berkenfeld. dated July 29, 2016. The plaintiff testified that on the date of his accident, December 22, 2008, it snowed a total of about one foot. He testified that he removed the snow from his driveway with a snowblower at about 2:00 p.m. that same day, and put down snow melt. The plaintiff further testified that. when he was done. he noticed there was snow on the street directly in front of his driveway. He stated that he saw water in the street from the driveway apron to about five feet into the street, although he did not know how deep it was. He indicated that the snow plows cannot go down directly to the blacktop. The plaintiff further testified thal he went out again around 5:30 p.m. to put out the garbage, which he placed in the street to the right of his driveway. He testified that he fell on ice as he walked back into the street to place the lid on the garbage can. Ile indicated that he had never made any written complaint to the Town with regard to the condition he alleges caused his injuries, only that his wife had made telephone calls. The plaintiff Johanna Varricchio testified that prior to the date of the accident she had spoken to employees of the Town. She testified that she had written to the Town many years ago. but could not find a copy of the letter. Mrs. Varricchio testified that she kept calling the Town to complain about flooding on the street in front of her driveway. Mrs. Vanicchio testified that she did not see her husband fal I. Mrs. Varricchio also testified that it was very cold on the date of the accident. Noelle M. Martin testified that she is employed by the Town oflslip as an administrative aide in the Department of Public Works, and that, as part of her employment, she investigates allegations against the Town by causing a search to be made of the official records of the Department of Public Works to ascertain whether the said Department has been given written notice of any alleged defect or dangerous cond ition in any Town Street. Ms. Martin testified that she searched the official records of the Department of Public Works back seven years from the date of the plaintiffs accident and found no written notice with regard the roadway condition which allegedly caused the plaintiffs injuries. [* 3] Varricchio v Town of Islip Index No. 09-45796 Page 3 The testimony of Ms. Martin and submitted documents establishes a number of relevant facts. In 2003, the Town received a telephone complaint as to flooding at the end of the driveway at 160 Wurz Street every time it rained. In response the Town had the nearby drainage basins cleaned out. In August of 2007. another telephone complaint was received by the Town from the plaintiff Johanna Varricchio complaining about a low lying area and water collecting in front of 160 Wurz Street. The Town responded by filling in the low area with asphalt. In November of2007, the Town received another telephone call from Mrs. Varricchio stating that a Town employee who put the asphalt in front of her drivev.iay told her that, if the asphalt did not work, to request drainage be installed. On December I 0, 2007, a Town employee issued a drainage request in response to this complaint, which described the severity of the problem as ''moderate." The request also included a rough sketch of the proposed drainage. In an affidavit submitted in support of the Town's motion, Thomas Owens states that he is the Commissioner of the Town ofislip Department of Public Works and, as such, he is familiar with its administrative and management policies. He further states that he is not aware of any changes in protocols with regard to analysis of road flooding conditions from 2007 until he took office in 2012. He states that in and arow1d 2007 the Town had 47 open drainage requests, and that authorization for drainage work is always made on the administrative level. Mr. Owens states that, as a municipal government, some difficult decisions have to be made by the Town, including foregoing certain improvements for the greater good of the community at large. Mr. Owens further states that at limes a decision has to be made with regard to priority in evaluating localized improvements. He states that some of the factors in setting such priorities are the scope of the geographical area affected, the number of properties affected and degree, the number of complaints received, whether the site was or is a pumping site, and traffic volume. Mr. Owens states that the location at 160 Wurz Street did receive a request for drainage work in November of 2007, but that the site was not a priority pumping site. was limited in geographical scope, only affected a handful of residents, was not the site of any accidents, and to the department's knowledge, and was not the subject of many complaints. Finally, Mr. Owens states that, due to fiscal consideration , administrative constraints and priorities, the drainage work on Wurz Street was not performed until 2011. The affidavit of Teresa Bogardt states that she in employed in the office of the Town Clerk of the Town oflslip. As part of her employment she investigates allegations against the Town by causing a search to be made of the official records of the Town Clerk's office to ascertain whether the Town Clerk has been given written notice of any alleged defect or dangerous condition in any Town street. She also states that she personally made a search of the records of the Town Clerk's office going back seven years for written notice given prior to December 22, 2008, of any defect or dangerous condition in the vicinity of 160 Wurz Street, Brentwood, New York. Ms. Bogardt further states that no record of any written notice of a defect or dangerous condition in the vicinity of 160 Wurz Street had been given to the Town Clerk' s office prior to December 22, 2008. The proponent of a summary judgment motion must make a prima fac.ie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (A lvarez v Prospect Hosp. , 68 NY2d 320, 508 NYS2d 923 [ 1986): Sillman v Twe11tietlz [* 4] Varricchio v Town oflslip Index No. 09-45796 Page4 Centm:v-Fox Fi/111 Corp. , 3 NY2d 395, 165 NYS2d 498 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Willegrad v New York Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316 [1985]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ... and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212 [b] ; Zuckerman v City of Ne w York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Rotlt v Barreto, 289 AD2d 557, 735 NYS2d 197 l2d Dept 20011; 0 'Neill v Fish kill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). The Town has made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it lacked prior written notice of the allegedly defective condition that caused the plaintiff's accident. Where, as here, a municipality has enacted a prior written notice statute pursuant to Town Law article 65. it may not be subjected to liability for injuries caused by a defect which comes within the ambit of the law unless it has received prior written notice of the alleged defect, or an exception to the prior written notice requirement applies (see Conner v Ci(y of New York, 104 AD3d 637, 960 NYS2d 204 [2d Dept 20 13]; Masotto v Village of Lindenhurst, 100 AD3d 718, 954 NYS2d 557 [2d Dept 2012]; Braver v Village of Cedarlwrsf, 94 AD3d 933 , 942 NYS2d 178 [2d Dept 2012]). The Court of Appeals has recognized only two exceptions to the prior written noti ce requirement. namely, where the municipality created the defect through an affinnative act of negligence, or a special use confers a special benefit upon the municipality (see Y11rborouglz v City of New York, 10 NY3d 726, 853NYS2d 261 [2008]; Amabile v City of B uffalo, 93 NY2d 47 1, 693 NYS2d 77 [ 1999] ; Carlucci v Village of Scarsdale, 104 AD3d 797, 961NYS2d318 [2d Dept 2013]). Pursuant to Town Law § 65-a and Town oflslip Code, as a precondition to commencing a civil action against the Town to recover damages for personal injuries sustained as a result of a defect in Town property, the Town must be given prior written notice of the defect. Town ofl slip Code § 47A-3 states. in relevant part: A. No civil action shall be maintained against the Town of Islip or any of its employees for damages or inj uries to persons or property sustained by reason of any highway, street, bridge, culvert, sidewalk, crosswalk. highway or street marking, traffic sign, signal or device, tree. tree limb or other property owned or maintained by the Town oflsl ip being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective, out of repair, unsafe, dangerous or obstructed condition of such highway, street, bridge, culvert, sidewalk, crosswalk, highway or street marking, traffic sign. signal or device, tree, tree limb, or other property was actually given to the Town Clerk or Commissioner of Public Works and there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger, obstruction or condition complained of. [* 5] Varricchio v Town oflslip ln<.lex No . 09-45796 Page 5 B. The Commissioner of Public Works shall transmit in writing to the Town Clerk, within five days after the receipt thereof, all written notices received by him pursuant to this section and Subdivision 2 of§ 65-a of the Town Law. The Town Clerk shall cause all written notices received by him or her, pursuant to this section and Subdivision 2 of§ 65-a of the Town Law to be presented to the Town Board within five days of the receipt thereof or at the next succeeding Town Board meeting. whichever shall be sooner. It is noted that the plaintiffs' claim that the Town fails to comply with § 47A (B) is without merit. The testimony of Town employee Noelle Martin on which the plaintiffs base their claim has been misconstrued. This section only requires that written complaints be fo rwarded to the Town Clerk' s office. Ms. Ma11in's testimony only refers to telephone complaints and stated only that verbal complaints are not referred to the Town Clerk's office. Thus, no violation of this section of the Town Code has been established. Any verbal complaints received, or internal documents generated, by the Town are insufficient to satisfy the statutory requirement (see Wilkie v Town of Huntington, 29 AD3d 898, 816 NYS2d 148 [2d Dept 2006]; Ce111wme v Town ofSnlitlttow11, 303 AD2d 35 1, 755 NYS2d 651 [2d Dept 2003]). A verbal complaint reduced to writing by a municipality does not constitute prior written notice (see McCarthy v City of White Plains, 54 AD3d 828, 829-830, 863 NYS2d 500 [2d Dept 2008]; Akcelik v Town of Islip, 38 AD3d 483, 831 NYS2d 491[2d Dept 2007]; Ce111w111e v Town <~f Smithtown, supra). Prior written repair orders do not constitute prior written notice of prior defects (Lopez v Gonzalez, 44 AD3d I 012. 1013, 845 NYS2d 91 [2d Dept 2007]; McCarthy v City of White Plai11s, supra: Dalton v City of Saratoga Springs , 12 AD3d 899, 901, 784 NYS2d 702 (3d Dept 2004]). The request for drainage prepared by a Town employee is the equivalent of a work order and, thus, does not give rise to a claim that defendant has received prior written notice. The plaintiffs' reliance on Pruclw v Town of Babylon . 138 AD3d 108, 330 NYS3d 67 1 (2d Dept 2016), is misplaced, as the facts of that case are clearly dissimilar from those before this Court. Similarly, neither constructive notice nor actual notice of a defect obviates the need for prior written notice to the Town (see Amabile v City of Buffalo. supra: Wilkie v Town of Hu11tillgto11, supra: Ce111iame Town ofSmithtown, supra). The Town having established the lack of prior written notice, the burden shifts to the plaintiffs to proffer ev idence that one of the claimed exceptions to the written notice requirement applies (see Gag11011 v Ci(v ofSaratoga Springs, 51 AD3d I 096, 858 NYS2d 797 [3d Dept 2008L Betwld v Tow11 of Bahy/011, 18 AD3d 787, 796 NYS2d 680 [2d Dept 2005]; Brooks v Village of Horseheads, 14 AD3d 756. 788 N~S2d 437 [3d Dept 2005]). The affidavit of Richard Berkenfeld submitted by the plaintiffs is inadmissible and will not be considered by the Court. "An expert is quali fied to proffer an opinion if he or she is ' possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the information imparted or the opinion rendered is reliable' "(1Waott v Ward, 48 NY2d 455, 459. 423 NYS2d 645 [1979); see Doviak v Fiukelstei11 & Partners, LLP, 137 AD3d 843, 27 NYS3d 164 r1d [* 6] Varricchio v Town of Islip Index No. 09-45796 Page 6 Dept 2016] ; Leiclzt v City of N. Y. Dept. of Sanitatio11, 131 AD3d 515, 516, 15 NYS3d 157 [2d Dept 2015] ; Flanger v 2461 Elm Realty Corp., 123 AD3d 1196, 998 NYS2d 502 [3d Dept 2014]). Mr. Berkenfield ' s recitation of his expertise fails to disclose that he has any experience with regard to the design of either roadways or storm drainage systems. Furthermore, the opinions set forth in his affidavit rely, in part, on uncertified climatological data, w hich is inadmissible and cannot be considered (see McB1 :va11t v Pisa Holding Corporation , 110 AD3d 1034, 973 N YS2d 757 [2d Dept 20 13]; Morabito v I 1 Park Place LLC, 107 AD3d 472, 967 NYS2d 694 [ I st Dept 2013]. The plaintiffs have also failed to clearly establ ish that the alleged dangerous condition was due to flooding. The plaintiff testified that on the date of his accident it snowed a total of about one foot. He further testified that the snow plows cannot go down directly to the blacktop. While a municipality may be held liable if its snow removal efforts result in a dangerous condition or exacerbate a previously existing dangerous condition (Joseplz v Pitkin Carpet, 44 AD3d 462, 843 NYS2d 586 [lst Dept 2007j), liability w ill not attach for its failure to remove all the snow and ice from a particular area, because such failure is not an affirmative act of negligence (Stallone v Long Is. R.R. , 69 AD3d 705, 894 NYS2d 65 [2d Dept 20 11 ]; Groninger v Vil. of Mamaroneck , 67 AD3d 733 , 888 NYS2d 205 [2d Dept 20 l O]; Zll'ielic/J v Incorporated Vil. of Freeport, 208 /\D2d 920, 617 NYS2d 871 r2d Dept 1994]). Based upon the plaintiffs own testimony, it is unclear whether or not the alleged condition which caused his foll was a result of flo oding or the snowfall. In any event, the Town is entitled to summary j udgment dismissing the complaint. A municipality is immune from liability "arising out of claims that it negligently designed [a] sewerage system·' or storm drainage system (Tappan Wire & Cable, /11c. v County of Rockland, 7 AD3d 781, 782, 777 N YS2d 517 [2d De pt 2004]; see Zarli11 v Town of Clarkstown, 102 A D3d 865, 958 NYS2d 46.+ (2d Dept 2013]; Carbo11aro v Town ofN. Hempstead, 97 AD3d 624, 948 NYS2d 645 [2d Dept 20 12] ; Fireman's Fund Ins. Co. v County of Nassau , 66 AD3d 823 , 887 NYS2d 242 [2d Dept 2009]). I lowcver, a municipality is not immune from liability aris ing out of claims that it negligently maintained its storm drainage system (see De Witt Props. v City of New York, 44 NY2d 4 17, 406 NYS2d 16 [1978]; Zarli11 v Town ofC/arkstow11 , s upra; Carbo11aro v Town of N. Hempstead, supra). It is also well sett led that a governmental entity has a duty to the public to keep its streets in reasonably safe condition (see Friedman v State of New York, 67 NY2d 271 , 502 N YS2d 669 [1986]; Weiss v Fote, 7 N Y2d 579. 200 NYS2d 409 [ 1960]). W hile this duty is nondelegable, municipalities are accorded a qualified immunity from liability arising out of a highway planning decision which derives from a concern about unwarranted intrusion into discretionary governmental functions (see Fried11u111 v State of New York , supra; Weiss v Fote , supra ). Once a governmental entity becomes aware of a dangerous condition, unde11akes a reasonable study thereof with an eye toward alleviating the danger, and formu lates a remedial plan, "an unjustifi able delay in implementing the plan constitutes a breach ... just as surely as if it had totally failed to study the known condition in the first instance" (Friedman v State of New York, supra. at 286, 502 NYS2d 669). However, deferment ofremedial action may, however, be justified by proof that "the delay stemmed from a legitimate ordering of priorities with other projects based on the availabi lity of funding.. (Friedman v State of New York, supra at 287, 502 NYS2d 669; see Trautmll11 v State of New York, 179 AD2d 635, 578 NYS2d 24 [2d Dept 1992]; Longo v Tafaro , I 37 AD2d 661. 524 NYS2d 754 [ 2d Dept 1988]). [* 7] Varricchio v Town of Islip Index No. 09-45796 Page 7 The Town has established through the affidavit of Thomas Owens, the Commissioner of the Town oflslip Department of Publi c Works, that at the time of the plaintiffs accident there were 47 open drainage requests. Based upon the criteria used by the Town, the plaintiffs ' request was of a low priority because the site was not a priority pumping site. it was limited in geographical scope, only affected a handful of residents, was not the site of any accidents, and to the department's knowledge, was not the subject of many complaints. FinalJy, the affidavit noted that, unfortunately, due to fiscal consideration. administrative constraints and priorities, the drainage work on Wurz Street was not able to be performed until 20 11. As such, the Town is entitled to qualified immunity, which shields it from liability herein (see Graff v State of New York, 126 AD3d 108 l, 3 NYS3d 458 [3d Dept 2015]; Cruz v City of New York, 20 1AD2d606, 607 NYS2d 969 [2d Dept 1994)). Accordingly, the motion by the Town oflslip for summary judgment dismissing the complaint is granted. The cross motion by the plaintiff seeks summary judgment dismissing the Town's sixth and seventh affirmative defenses asserting the plaintiffs' failure to provi de written notice as defenses herein. For the reasons set forth above, the plaintiffs· cross motion is denied. The Court directs that the causes of action as to which summary judgment was granted arc hereby severed and that the remaining causes of action shall continue (see CPLR 3212 [e] [ I ]). Dated n/¢6 :isE FINAL DIS POSITION X NO N-Fl NAL DISPOSITION
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