Bonner v City of New Rochelle

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Bonner v City of New Rochelle 2017 NY Slip Op 33475(U) February 21, 2017 Supreme Court, Westchester County Docket Number: Index No. 68652/2015 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 02/22/2017 11:02 AM NYSCEF DOC. NO. 44 INDEX NO. 68652/2015 RECEIVED NYSCEF: 02/21/2017 DECISION DECISION AND ORDER ORDER To commence commence the statutory statutory period of of appeals appeals as of of right right period (CPLR (CPLR 5531 [a]), you are advised advised to serve serve a copy copy of of this this Order, Order, with with notice notice of of entry, entry, upon all parties. parties. SUPREME COURT COURT OF THE STATE STATE OF NEW NEW YORK YORK SUPREME lAS PART, PART, WESTCHESTER IAS WESTCHESTER COUNTY COUNTY \ Present: HON. HON. MARY MARY H. SMITH SMITH Present: Supreme Court Court Justice Supreme Justice KENIA BONNER BONNER KENIA Plaintiff, Plaintiff, MOTION TE: 02/03/17 02/03/17 MOTION DA DATE: INDEX NO.: 68652/2015 68652/2015 INDEX -against-againstCITY OF NEW NEW ROCHELLE, ROCHELLE, THE COUNTY OF THE CITY THE COUNTY WESTCHESTER, COUNTY OF OF WESTCHESTER WESTCHESTER, THE THE COUNTY WESTCHESTER DEPARTMENT OF TRANSPORTATION, TRANSPORTATION, THE BEEDEPARTMENT THE BEELINE BUS SYSTEM AND LIBERTY TRANSIT SYSTEM AND LIBERTY LINES LINES TRANSIT INC., Defendants. Defendants. -I The following following papers papers numbered numbered 1 to 8 were motion by defendant defendant The The were read on this motion New Rochelle Rochelle for an Order Order pursuant pursuant to CPLR granting defendant defendant summary summary CPLR 3212 3212 granting City of New judgment, etc. judgment, I ,J Papers Papers Numbered Numbered Notice of Motion Motion - Affirmation (Powers) - Exhs. A-F - Memorandum Memorandum of Law ................ 1-4 Notice Affirmation (Powers) Answering Affirmation (Zeichner) - Exhs. A & 1..................................................... 5-6 Answering Affirmation (Zeichner) Replying Affirmation (Powers) - Exhs H-1. H-1 ............................................................. 7-8 Replying Affirmation (Powers) papers, it is Ordered motion by defendant defendant for an Order Ordered that that this motion Order Upon the foregoing foregoing papers, pursuant General Municipal The City City of New , pursuant to CPLR CPLR 3212 3212 and General Municipal Law Law 50-i granting granting defendant defendant The Rochelle judgment and dismissing. Rochelle ("defendant ("defendant City") summary summary judgment dismissing. plaintiff's plaintiff's complaint complaint is disposed disposed of as follows: follows: 1 [* 1] 1 of 5 I .. FILED: WESTCHESTER COUNTY CLERK 02/22/2017 11:02 AM NYSCEF DOC. NO. 44 INDEX NO. 68652/2015 RECEIVED NYSCEF: 02/21/2017 This action wherein wherein plaintiff plaintiff seeks recover for alleged alleged personal personal injuries injuries she This is an action seeks to recover sustained on April 13,2015, 7:40 a.m., as a result result of her stepping stepping into a April 13, 2015, at approximately approximately 7:40 of her sustained roadway on Main Street, Street, in front Street near near the intersection intersection with front of 466 Main Street hole in the roadway New Rochelle, Rochelle, New York, getting off off the number number 60 bus. York, when when she was was getting North Avenue, Avenue, in New Plaintiff commenced commenced this action, specifically alleging that that defendant defendant City was Plaintiff this action, specifically alleging negligent in its ownership, ownership, operation, operation, management, management, maintenance, maintenance, control, control, inspection inspection and negligent repair of said roadway roadway by allowing allowing the existence failing to warn warn of, the hole, which which existence of, and failing repair plaintiff characterizes characterizes as a dangerous, unsafe and trap-like condition. All discovery been plaintiff dangerous, unsafe trap-like condition. discovery has been completed and the Note Note of Issue has been filed. completed defendant City is moving moving for for summary summary judgment dismissing the complaint complaint and Now, defendant judgment dismissing cross-claims against against it arguing arguing that that liability liability may may not not be imposed imposed upon it because because it had all cross-claims lacked prior prior written notice of alleged defective defective roadway roadway condition condition as required required by Article lacked written notice of the alleged Article XII, Section 127 127A New Rochelle Rochelle Charter. Charter. Plaintiff Plaintiff has submitted submitted opposition opposition but XI I, Section A of of the City of New the co-defendants, co-defendants, the County County of Westchester, the County County of Westchester Department of of Westchester, Westchester Department Transportation, Bee-Line Bus System System or Liberty Liberty Lines Lines Transit have not. Transportation, the Bee-Line Transit Inc., have The movant for burden of establishing The movant for summary summary judgment judgment has the burden establishing a prima facie facie showing of entitlement to judgment matter of must do so by submitting of entitlement judgment as a matter of law and must submitting showing evidentiary proof in admissible See CPLR CPLR 3212, subd. Zuckerman V. City of evidentiary proof admissible form. form. See subd. (b); Zuckerman v. City of New York, N.Y.2d 557 (1980). (1980). It is well settled settled that that a municipality municipality that prior York, 49 N.Y.2d that has adopted adopted a prior written within the scope scope of written notice notice law cannot cannot be held liable liable for for a defect defect within absent the of the the law absent requisite written unless an exception exception to the requirement requirement applies. applies. Forbes Forbes v. City of requisite written notice, unless New York, 1106 (2d Dept' Dept' 2011); Poirier v. City of Schenectady, Schenectady, 85 N.Y.2d N.Y.2d 310 New York, 85 A.D.3d A.D.3d 1106 2011); Poirier (1995); Hanover Hanover Ins. Co. v. Town Pawling, 94 A.D.3d 1056 (2d Dep't Dep't 2012); Abano Town of of Pawling, A.D.3d 1055, 1056 2012); Abano (1995); 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 02/22/2017 11:02 AM NYSCEF DOC. NO. 44 INDEX NO. 68652/2015 RECEIVED NYSCEF: 02/21/2017 v. City das v. 2009); Katsou v. Suffolk County County Commu Community Coil., 66 AD.3d Dep't 2009); Katsoudas Citv A.D.3d 719, 719 (2d Oep't nity Coll., v. Suffolk the to the exceptions to zed exceptions The only of New York, York, 29 Dep't 2006). only recogni recognized 2006). The A.D.3d 740, 741 (2d Dep't 29 AD.3d of New "created ality "created which the municip situations in which statutory prior written written notice notice require requirement involve situations municipality ment involve statutory prior confers special use where a special negligence, or where the defect hazard through affirmative use confers ive act of negligence, through an affirmat or hazard defect or the 638 (2d 637, 638 A.D.3d 637, of New a benefit upon upon the municipality." Conner v. City City of New York, York, 104 AD.3d (2d Dep't Dep't ality." Conner the municip a benefit New City of v. City 2014); Phillips 2013); Methal Methal v. City of Dep't 2014); Phillips v. of New A.D.3d 743, 743 (2d Dep't of N.Y., 116 AD.3d 2013); York, 107 AD.3d 775 (2d Dep't Dep't 2013}. 2013). A.D.3d 774, 775 which Article XII, Section Defendant City cites Rochelle City Charter Charter,, Article Section 127A 127A which le City New Rochel the New cites the ant City Defend states that: states or damages or for damages against the city for No civil maintained ned against shall be maintai action shall civil action No street, any uence of ed in conseq injuries to person person or property sustained consequence of street, property sustain injuries drains, storm or sewer highway, trees, bridge, culvert, sanitary sewer storm drains, sanitary culvert, highway, trees, bridge, out defective, out sidewalklk or crossw crosswalk other public public place place being being defective, alk or any other sidewa the of the uence of ted, or in conseq of repair, repair, unsafe, unsafe, dangerous obstructed, consequence dangerous or obstruc of , thereof notice written unless , existence of snow or ice thereon, unless written notice thereof, thereon snow o_r existence the to given specifying particular actually been been given the ar place, had actually the particul ing the specify event the of ing happen the Commissioner Public Works prior to happening of the event prior Works Public of Commissioner was person or property causing such such damage injury to person property,, and there there was damage or injury causing danger defect, the a failure neglect by the city to repair repair or remove remove defect, danger failure or neglect a the or the d or remove be ice or or obstruction to cause the snow to removed snow the cause or or obstruction time ble reasona a within specified place to be made reasonably safe within reasonable time bly made reasona specified place after the receipt receipt of notice notice relating relating to it. after Scott Pickup, affidavit of submits the affidavit In support motion, defendant of Scott Pickup, the the defendant City submits support of its motion, In whose Rochelle, whose of New City of for the City Works for Acting Commissioner Department New Rochelle, Public Works ent of Public ssioner of the Departm Acting Commi of Public ent of ns of the Departm day operatio responsibilities include supervising day-to-day operations Department Public supervising the day-toibilities include respons written the prior that contain Works. Mr. Pickup Pickup avers avers that after searchi searching records that contain the prior written ng the records that after Works. Mr. any find any did not he did notices,, which which are Complaint block and lot file, he not find street file and block int Book, street are the Compla notices defective roadwa records of "the City City ever ever receivin receivingg written notice of [a] [aJ defective roadwayy conditio conditionn abutting abutting written notice of "the records also City also Defendant City 2015." Defendant April 13, 2015." 466 Main Street Street in in New New Rochell Rochelle, New York, prior to April York, prior e, New 466 Main [* 3] 3 3 of 5 FILED: WESTCHESTER COUNTY CLERK 02/22/2017 11:02 AM NYSCEF DOC. NO. 44 INDEX NO. 68652/2015 RECEIVED NYSCEF: 02/21/2017 submits plaintiff's plaintiff's 50-H deposition deposition testimony submits testimony in which which she admits admits that that she had taken taken this this bus past the two two years, five times never noticed noticed this hole nor nor did trip for the past times per week, week, and had never she know know how how long it existed. she existed. Based foregoing, the Court Court finds finds that that defendant defendant prima facie has established established Based on the the foregoing, prima facie entitlement to judgment. incumbent upon plaintiff plaintiff to raise a triable issue of entitlement judgment. It therefore therefore was was incumbent triable issue fact respect thereto thereto and this she has failed to do. See, e.g., Alvarez Prospect Hospital, Hospital, fact with respect Alvarez v. Prospect N.Y.2d 320, 324 (1990); (1990); Zuckerman N.Y.2d 557,562 557,562 (1980). 68 N.Y.2d Zuckerman v. City of New York, 49 N.Y.2d Plaintiff does does not address address defendant's notice argument. argument. Instead, Instead, the only Plaintiff defendant's lack of written written notice argument plaintiff's plaintiff's counsel counsel raises raises in his three-page defendant argument three-page attorney attorney affirmation affirmation is that that defendant City's City's use of this hole falls "special use" category because the hole "abuts "abuts a sewer falls within within a "special category because sewer roadway." The Court notes notes that plaintiff failed special use argument argument in her in the roadway." The Court that plaintiff failed to raise this special Notice of Claim, Complaint Complaint or Bill of Particulars. Particulars. Furthermore, Furthermore, in support Notice support of said special special use argument, plaintiff plaintiff cites inapposite case explain how how defendant defendant City gets gets argument, cites one inapposite case and fails fails to explain any special special use out of this hole. any Additionally, the co-defendants co-defendants failure motion notwithstanding notwithstanding Additionally, failure to have opposed opposed this this motion due notice notice of same same must must be deemed concession as to the correctness correctness of defendant defendant City's City's deemed a concession due presentation of the facts arguments entitling relief sought presentation facts and legal arguments entitling it to judgment judgment and the relief sought herein. See Kuehne Kuehne & Nagel, Nagel, Inc. v. F. W. Baiden, Baiden, 36 N.Y.2d N.Y.2d 539, 544 (1975); (1975); Springer Springer v. herein. Clark Pub. Co., 191 AD.2d Dep't 1993), 1993). Iv. to app. N.Y.2d 706 Keith Clark AD.2d 922 (3d Dep't apo. dsmd. dsmd. 82 N.Y.2d (1993); John John William Costello Associates, Standard Metals Metals Coro., Corp., 99 AD.2d 228 (1993); William Costello Associates, Inc. v. Standard AD.2d 227, 227,228 (1st Dep't Dep't 1984), 1984), app. dsmd. dsmd. 62 N.Y.2d N.Y.2d 942 (1984). As a result, defendant's defendant's City motion motion is granted in its entirety. entirety. granted 4 [* 4] 4 of 5 --- FILED: WESTCHESTER COUNTY CLERK 02/22/2017 11:02 AM NYSCEF DOC. NO. 44 INDEX NO. 68652/2015 RECEIVED NYSCEF: 02/21/2017 Plaintiff and the remaining co-defendants co-defendants shall appear appear for Settlement Conference Conference Plaintiff the remaining for a Settlement Settlement Conference Conference Part Part on Tuesday, March 7, 7,2017, 9:15 AM. A.M. in the Settlement Tuesday, March 2017, in room 1600, at 9:15 Dated: Dated: February2-1 ,2017 February2-l White Plains, Plains, New New York White York 5 [* 5] 5 of 5

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