Thomas v City of Yonkers
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Thomas v City of Yonkers 2016 NY Slip Op 33171(U) November 16, 2016 Supreme Court, Westchester County Docket Number: Index No. 59559/2014 Judge: Mary H. Smith Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 11/17/2016 04:25 PM NYSCEF DOC. NO. 32 INDEX NO. 59559/2014 RECEIVED NYSCEF: 11/16/2016 DECISION AND ORDER ORDER DECISION To commence commence the statutory statutory period of appeals appeals as of of right right period (CPLR 5531 [a]), [a)), you are are advised advised (CPLR to serve serve a copy copy of this this Order, Order, with notice of entry, entry, upon upon all with notice parties. parties. SUPREME THE STATE SUPREME COURT COURT OF THE STATE OF NEW NEW YORK YORK lAS PART, PART, WESTCHESTER COUNTY IAS WESTCHESTER COUNTY Present: HON. HON. MARY MARY H. SMITH SMITH Present: Supreme Court Court Justice Justice Supreme ALICE THOMAS and and THOMAS THOMAS MELAKATHU, MELAKATHU, ALICE THOMAS Plaintiffs, Plaintiffs, -against-against- MOTION DATE: DATE: 11/04/16 11/04/16 MOTION INDEX NO.: 59559/2014 59559/2014 . INDEX THE CITY CITY OF YONKERS, YONKERS, THE Defendant. Defendant. following papers papers numbered numbered 1 to 4 were were read on this unopposed unopposed motion motion by The following defendant for for an Order Order pursuant pursuant to CPLR CPLR 3212 granting granting defendant defendant summary summary judgment, defendant judgment, etc. Papers Numbered Numbered Papers Notice of of Motion Motion -Affirmation - Affirmation (Levinson) (Levinson) - Exhs. A-J - Memorandum Memorandum of of Law .............. 1-4 Notice Upon the papers, it is Ordered Ordered that unopposed motion motion by defendant defendant for Upon the foregoing foregoing papers, that this unopposed for Order pursuant pursuant to CPLR CPLR 3212 3212 and General General Municipal Municipal Law 50-i granting granting defendant defendant an Order summary judgment dismissing plaintiff's plaintiff's complaint complaint is disposed disposed of as follows: follows: summary judgment and dismissing This is an action action wherein plaintiff Alice Alice Thomas seeks to recover recover for for personal personal injuries injuries wherein plaintiff Thomas seeks This that she allegedly allegedly sustained sustained on October October 3, 2013, 2013, at approximately approximately 8:45 8:45 a.m., as a result result of of that located at at 443 Bronxville Road, her tripping tripping and falling falling on a City of Yonkers' Yonkers' sidewalk sidewalk located 443 Bronxville Yonkers, New New York. According According to plaintiff plaintiff Thomas, Thomas, she she had been been walking sidewalk Yonkers, walking along along the sidewalk tripped and fell over over a metal stump stump protruding protruding two inches inches out of the sidewalk. and then then tripped sidewalk. 1 [* 1] 1 of 4 by removed by post removed or post sign or metal sign remnant of a metal was a remnant Plaintiff stump was the stump that the alleges that Thomas alleges Plaintiff Thomas defendant. defendant. its in its defendant in against defendant negligence against alleging negligence Plaintiffs action, alleging this action, commenced this Plaintiffs commenced failing in failing and in sidewalk and the sidewalk of the control of ownership, maintenance and control management, maintenance operation, management, ownership, operation, an for an exist for to exist allowing it stump, and allowing to metal stump, it to condition, the metal dangerous condition, remove a dangerous properly remove to properly of behalf of on behalf consortium on of consortium for loss of claims for unreasonable period of time. Plaintiffs also assert claims also assert time. Plaintiffs nable period unreaso and aa completed and been completed has been discovery has plaintiff Thomas's husband,, Thomas Melakathu. All discovery Thomas Melakathu. Thomas's husband plaintiff filed. been filed. Note has been Issue has of Issue Note of arguing complaint arguing dismissing the complaint judgment dismissing Now, summary judgment for summary moving for defendant is moving Now, defendant the of the notice of written notice prior written lacked prior that because it had lacked upon it because imposed upon not be imposed may not liability may that liability the of the Charter of the Charter of the Section 24-11 of required by Section allegedly condition, as required sidewalk condition, defective sidewalk allegedly defective affirmatively had affirmatively defendant had that defendant finding that City supporting any finding evidence supporting there is no evidence Yonkers; there of Yonkers; City of that plaintiff sidewalk metal; created protrudingg sidewalk metal; and that plaintiff of protrudin condition of negligent condition allegedly negligent the allegedly created the without plaintiff survive without cannot survive Melakathu's must fail because because it cannot plaintiff claim must consortium claim u's loss of consortium Melakath General under General Claim under of Claim Notice of assert it by Notice Thomas' primary claims plaintiffs failed failed to assert claims and plaintiffs Thomas' primary 50-e and 50-i. Municipal sections 50-e Law sections Municipal Law that: part that: relevant part provides in relevant Yonkers provides Section City of Yonkers Charter of the City the Charter of the Section 24-11 of injury city ... for. .. injury the city against the "No civil action maintained against shall be maintained action shall or sidewalk or consequence of any ... sidewalk to person person ... sustained sustained in consequence including foregoing including the foregoing any of the crosswalk, portion of any part or portion crosswalk, or any part of out of being thereto, being out any attachments thereto, thereon or attachments encumbrances thereon any encumbrances that appears that unless it appears repair, obstructed, unless dangerous or obstructed, unsafe, dangerous repair, unsafe, d obstructe or us dangero written notice of the defective, unsafe, dangerous or obstructed unsafe, , written notice of the defective the of Commissioner the Commissioner condition, the given to the actually given was actually condition, was ent departm or person any Department of Public Works or any person or department Works Public ent Departm by notice such receive sioner authorized by the Commissioner to receive such notice by the Commis authorized previous was there was previous where there certified mail, or where registered mail, or registered certified or obstructed us or obstructed dangero existence of the defective, unsafe, dangerous unsafe, , defective of e existenc the given was thereof condition, notice thereof was given to the written notice condition, and written 2 [* 2] 2 of 4 Commissionerer by certified certified or registered registered mail, or there there was was a Commission failure or neglect neglect within within a reasonable reasonable time time after after the the receipt receipt of of failure obstruction or danger defect, such notice repair remove the defect, danger obstruction remove or repair to such notice complained of, or the place place otherwise otherwise made made reasonably reasonably safe." safe." complained However, "the "the only only re~ognized recognized exceptions exceptions to the statutory statutory prior prior written written notice notice requirement requirement However, involve situa~ions situations in which which the municipality municipality created created the defect defect or hazard hazard through through an involve affirmative act of negligence, negligence, or where where a special special use confers confers a benefit benefit upon upon the municipality. municipality." " affirmative Conner v. City City of New New York, York, 104 A.D.3d AD.3d 637, 638 638 (2d Dep't Dep't 2013); 2013); Methal Methal v. City City of N.Y., Conner York, 107 A.D.3d 116 AD.3d 743 (2d Dep't Dep't 2014); 2014); Phillips Phillips v. City City of of New New York, AD.3d 774, 775 775 (2d (2d A.D.3d 743, 743 Dep't 2013). 2013). Dep't Defendant has submitted submitted the 50-H testimony testimony and second second deposition deposition testimony testimony of Defendant Assistant to Administrative Assistant plaintiff Thomas affidavit of of Lori Tangredi, Tangredi, an Administrative to the the the affidavit Thomas and the plaintiff whose duties Commissionerer of the Department of Public Public Works Works for City of Yonkers, Yonkers, whose duties and and for the City the Department Commission written notice responsibilities include her maintaining maintaining defendant's defendant's prior prior written notice records. records. Ms. es include responsibiliti Tangredi states states that that she searched searched defendant's defendant's prior prior written written records records and did not find any any prior prior Tangredi written notice notice records records for the subject accident accident location. location. the subject written Defendant also also submits submits the the deposition deposition testimony testimony of James James Grimm, Grimm, an Environment Environmentalal Defendant es include Maintenance Worker Worker for for the City City of Yonkers, Yonkers, whose whose duties duties and responsibiliti responsibilities include Maintenance installing, repairing, repairing, maintain maintain and removing removing signs signs and posts. He testified, testified, and cited cited to a Work Work installing, that location work performed Order made made in the regular regular course course of his duties, duties, that that the only only work performed at that location Order was installation of of a new new post post and firehouse firehouse sign and not the the removal removal of any sign. If the installation was the Additionally, if there anything was was removed, removed, it would have been noted noted on the Work Work Order. Order. Additionally, there would have anything the hole. was a sign post post stump, stump, his department department would remove the stump stump and fill in the would remove was Based on the foregoing, the the Court Court finds finds that defendant prima prima facie facie has has established established that defendant the foregoing, Based entitlement to judgment. incumbent upon plaintiffs plaintiffs to raise a triable triable issue issue of was incumbent therefore was judgment. It therefore entitlement 3 [* 3] 3 of 4 - - - - - - - - - - - - - - -- fact fact with respect respect thereto thereto and this they they have failed failed to do so as they they have have failed failed to submit submit any any opposition opposition to defendant's defendant's motion. motion. See, e.g., e.g .. Alvarez Alvarez v. Prospect Prospect Hospital, Hospital, 68 N.Y.2d N.Y.2d 320, 324 (1990); (1990); Zuckerman Zuckerman v. City of New New York, 49 N.Y.2d N.Y.2d 557,562 557,562 (1980). (1980). . Plaintiff Plainti1] Thomas Thomas has failed to raise any triable triable issues issues of fact fact as to whether whether d~fendant d~fendant . had prior prior notice notice to this alleged alleged metal metal stump stump on the subject subject sidewalk sidewalk or whether whether defendant defendant had created created such dangerous dangerous condition. condition. Additionally, Additionally, plaintiffs plaintiffs had not identified identified in the Notice Notice of of Claim, nor had they they alleged alleged in the complaint, complaint, that that defendant defendant had derived derived any special special benefit benefit or special special use from the sidewalk. sidewalk. Plaintiffs Plaintiffs also failed failed to include include plaintiff plaintiff Melakathu's Melakathu's _I loss of consortium consortium claim in their their Notice Notice of Claim. Claim. Ultimat~ly, Ultimately, plaintiffs' plaintiffs' failure failure to have opposed opposed this motion motion notwithstand notwithstanding due notice notice ing due of same same must must be deemed deemed a concession concession as to the correctness correctness of of defendant's defendant's presentation presentation of the facts facts and legal arguments arguments entitling entitling it to judgment judgment and the relief relief sought sought herein. herein. See Kuehne Kuehne & NageL Nagel, Inc. Inc, v. F. W. W, Baiden, 36 N.Y.2d N,Y,2d 539, 544 (1975); (1975); Springer Springer v. Keith Clark Clark Pub. Co., Co" 191 AD.2d AD.2d 922 (3d Dep't Dep't 1993), Iv. to app. dsmd. dsmd, 82 N.Y.2d N.Y,2d 706 (1993); (1993); John John William William Costello Costello Associates. Associates, Inc. v. Standard Standard Metals Metals Corp.: Corp,: 99 AD.2d AD,2d 227, 228 (1st Oep't Dep't 1984), app. app, dsmd. dsmd, 62 N.Y.2d N,Y,2d 942 (1984). (1984), Accordingly, Accordingly, defendant's defendant's summary summary judgment judgment motion motion is granted granted and this this action action is hereby hereby dismissed. dismissed. Dated: Dated: /i/b , November 2016 November 2016 White White Plains, New New York I 4 [* 4] 4 of 4 rI
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