Fanta v City of Albany

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Fanta v City of Albany 2017 NY Slip Op 33376(U) December 5, 2017 Supreme Court, Albany County Docket Number: Index No. 903375-17 Judge: Roger D. McDonough 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: 1] ALBANY COUNTY CLERK 12/19/2017 09:08 AM NYSCEF DOC. NO. 18 INDEX NO. 903375-17 RECEIVED NYSCEF: 12/19/2017 STATE OF NEW YORK SUPREME COURT COUNTY 0:f ALBANY HANG JA FANTA and RONALD FANTA, Plaintiffs, DECISION AND ORDER IndexNo.: 903375-17 RilNo.: - 01-17-125031 -against- CITY OF ALBANY, ' Defendant. ' (Supreme Court, Albany County All Purpose Term) Appearances: JACOBY & MEYERS Attorneys for Plaintiffs (James W.--Shuttleworth, III, Esq., of Counsel) 1279 Route 300, PO Box 1111 Newburgh, N.Y. 14551 rri \ t:J WILLIAM G. KELLY, JR ESQ. INTERIM CORPORATION COUNSEL CITYOF ALBANY Attorney for Defendant (Jellisa M. Joseph, Esq., of Counsel) City Hall, Rpom 106 Albany, N.Y. 12207 Roger D. McDonough, J.: Defendant seeks dismissal of plaintiffs' complaint pursuant to CPLR § 321 l(a)(7). Plaintiff opposes the motion. Background Plaintiff Hang Ja Fanta allegedly sustained injuries as a result of a fall on a sidewalk located in front of premises located at 150 State Street in the City of Albany. The fall occurred on August 5, 2016. The piaintiffRonald Fanta has asserted a Joss of services, society and r consortium based on his spouse's injuries. The complaint alleges, inter alia, that defendant's I 1 of 5 [*FILED: 2] ALBANY COUNTY CLERK 12/19/2017 09:08 AM NYSCEF DOC. NO. 18 INDEX NO. 903375-17 RECEIVED NYSCEF: 12/19/2017 negligence included allowing, causing and/or permitting dangerous and unsafe conditions to exist on the aforesaid sidewalk. Defendant responded to plaintiffs complaint_with the instant motion to dismiss. Discussion CPLR § 3211(a)(7) Defendant argues that plaintiffs' complaint must be dismissed based on the City's prior written notice statute. In support, defendant relies upon Albany City Code § 24-1 as well as an affidavit from the City's Commissioner of the Department of General Services. The affidavit states that the City did not received prior written notice of any defective condition existing at the sidewalk at 150 State Street in the City of Albany. Additionally, defendant maintains that plaintiffs failed to establish that the City caused or created the allegedly defective condition. Defendant argues that there is no evidence to substantiate this type of claim beyond the allegations in plaintiffs complaint. Lastly, defendant points out that plaintiffs failed fo establish the existence of a special relationship between themselves and the City. In opposition, plaintiffs acknowledge having no proof of written notice at this stage of the litigation. Similarly, plaintiffs do not dispute the non-existence of any special relationship with the municipality. However, plaintiffs maintain that these issues are largely -irrelevant because their negligence theory is that the City affirmatively created the sidewalk defect. In support, plaintiffs have provided an expert affidavi~ from a professional engineer who relied upon photographic proof, proof of 2015 and 2016 repair work done by the City, and an inspection of the subject sidewalk. Accordingly, pl~intiffs maintain that a firm exception to the City's prior written notice statute exists here. In reply, defendant notes the points that have basically been conceded and argue that the plaintiffs cannot establish that the City caused or created the allegedly defective condition. Specifically, defendant maintains that plaintiffs' expert's affidavit fails to establish that any affirmative action of the City immediately resulted in the existence of the defect. Alternatively, defendant argues that neither the complaint nor the Notice of Claim sets forth factual allegations sufficient to state a claim that the City created or caused the allegedly defective condition. As an initial matter, to the extent the arguments were not improperly raised for the first time in reply papers, the Court finds that plaintiffs clearly set forth in their complaint and Notice 2 of 5 [*FILED: 3] ALBANY COUNTY CLERK 12/19/2017 09:08 AM INDEX NO. 903375-17 NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/19/2017 of Claim a theory that the defendant: (I) caused the dangerous condition; (2) caused the sidewalk to be cracked, broken up, uneven and not level; (3) caused ruts, holes and/or depressions to be in said sidewalk; and (4) caused the sidewalk to be in a dilapidated condition. Accordingly, this argument by defendant is wholly without merit. The Court finds that plaintiffs have adequately stated a cause of action sounding in general negligence against the City. More specifically, the C~urt finds that the plaintiffs have sufficiently alleged in their complaint that the City caused/affirmatively created the allegedly dangerous sidewalk condition (see, Fogan-Chew v Poughkeepsie Dept. of Public Works, 135 AD3d 702, 703 [2nd Dept. 2016]). The remaining arguments by defendant largely go to whether plaintiffs can ultimately establish their allegations (see, Sim v Farley Equipment Co. LLC, 138 AD3d·1228, 1229 [3 rd Dept. 2016]). Such a d~terminatimi is unnecessary for the Court to reach in. a CPLR § 3211 (a)(7) motion. General Municipal Law § 50-e As an additional basis for dismissal, defendant argues that plaint~ffs failed to comply with General Municipal Law § 50-e. Specifically, defendant maintains that plaintiffs' Notice of Claim failed to sufficiently describe the cause of the slip and fall. The defendant contends that no particularity was provided as to what, if any, defect caused the plaintiffs fall. Finally, based·on all of the foregoing arguments, defendant maintains that the derivative loss of consortium claim must also be dismissed. In opposition, plaintiffs maintain that they properly set forth the date, time and precise location of the incident. They note that they also set forth the condition of the sidewalk as "cracked, broken up, uneven and not level". Further, plaintiffs note that they attached photographs to their Notice of Claim in order to further identify the precise location of the fall. The City's reply did not address plaintiffs' argument as to this issue .. The Court finds that plaintiffs adequately complied with the requirements set forth in General Municipal Law§ 50-e(2). The information set forth and the photographs provided clearly provided the City with sufficient knowledge to "locate the place, fix the time and understand the nature of the accident'.' (Brown v City of New York, 95 NY2d 389,393 [2000]). ' In light of the Court's findings, the Court must also reject defendant's attempt to have the 3 of 5 [*FILED: 4] ALBANY COUNTY CLERK 12/19/2017 09:08 AM NYSCEF DOC. NO. 18 INDEX NO. 903375-17 RECEIVED NYSCEF: 12/19/2017 derivative consortium claim dismissed. / Defendant's remaining arguments have been considered and found to be insufficient to warrant dismissal under CPLR § 321 l(a)(7). Based on all of the foregoing, it is hereby ORDERED that defendants' motion to dismiss, brought pursuant to CPLR § 321 l(a)(7), is hereby denied; and it is further ORDERED that counsel are directed to appear for a court conference in chambers on January 5, 2018 at 11 :30 a.m. for the purpose of establishing a discovery schedule. This· shall constitute the Decision and Order of the Court. The original decision and order is being returned to the counsel for the plaintiffs who is directed to enter this Decision and Order - without notice and to serve defendant's counsel with a copy ofth~s Decision and Order with notice of entry. The Court will transmit a copy of the Decision and Order to the County Clerk. As this is an E-File case, no hard copies of the papers considered will be forwarded to the County Clerk. The signing of the decision and order and delivery of a copy of the decision and order _ shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry. ENTER. Dated: Albany, New York December 5, 2017 7. V. vi) ' Roger D. McDonouLg-h-----i(~ Supreme Court Justice ~- ~ · lblhq,lrtAG 4 of 5 [*FILED: 5] ALBANY COUNTY CLERK 12/19/2017 09:08 AM NYSCEF DOC. NO. 18 INDEX NO. 903375-17 RECEIVED NYSCEF: 12/19/2017 ' Papers Considered: rl. 2. 3. 4.. Defendant's Notice of Motion, dated July 3, 2017; Affirmation of Jellisa M. Joseph, Esq., dated July 3, 2017, with annexed exhibits including affidavit of Daniel Mirabile, sworn to June 30; 201_7; Affirmation of James W. Shuttleworth, Esq., dated August 21, 2017, with annexed exhibits including Affidavit of Michael J. Tuttman, P .E., sworn to August 18, 2017, . with annexed exhibits; Affirmation of Jellisa,M. Joseph, Esq., dated August 25, 2017, ·with annexed exhibit. r ,,.- 5 of 5 •

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