Diaz v State of New York

[*1] Diaz v State of New York 2004 NY Slip Op 51910(U) [18 Misc 3d 1108(A)] Decided on October 25, 2004 Ct Cl Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through January 30, 2008; it will not be published in the printed Official Reports.

Decided on October 25, 2004
Ct Cl

Joulé Diaz, an Infant by Her Mother and Natural Guardian, Jacqueline Clark and Jacqueline Clark, Individually Claimant(s)

against

The State of New York, Defendant(s)



107637



Claimant's attorney:MARK D. LIPTON, ESQ.

Defendant's attorney:HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL

BY: VINCENT CASCIO, ASSISTANT ATTORNEY GENERAL

Third-party defendant's attorney:

Thomas H. Scuccimarra, J.

Joulé Diaz, the infant Claimant [FN1] herein, alleges in Claim Number 107637 that Defendant's [*2]agent - the New York State Office of Parks, Recreation and Historic Preservation - negligently maintained a sidewalk adjacent to the Old Croton Aqueduct State Park by failing to remove snow and ice, causing Joulé to fall and sustain serious injury. Trial on the issue of liability alone was held on July 14, 2004.

The facts in this case were largely uncontroverted. Joulé Diaz, twelve years old at the time, and a Seventh Grade student at Mark Twain Middle School, got off her school bus at Warburton Avenue at approximately 3:00 p.m. on February 24, 2003 and proceeded to walk to her home along Glenwood Avenue in the City of Yonkers. It was a cold and clear day. A portion of the sidewalk along her path up the hill on Glenwood Avenue was adjacent to the Croton Aqueduct: property owned by the State of New York. The Claimant recalled that it had snowed perhaps one (1) week earlier. A lack of snowfall for at least four (4) days prior to February 24, 2003 is confirmed in certified weather records. [Exhibit A]. Claimant was carrying a notebook in her right hand, wearing a down jacket and Timberland boots and wearing a book bag on her back.

The sidewalk was entirely clear of snow and ice, until that portion of it that was adjacent to the Old Croton Aqueduct Trail property. As shown in Exhibits 2 and 3, that area was covered in bumpy snow and ice, of an uncertain depth, and an icy path had been formed by walkers across it. Claimant was able to identify the location of her accident on photographs taken a day after the accident, and marked the location with a circle. [See Exhibits 2 and 3]. Claimant marked the same photographs with an "x" to identify that portion she described as the Croton Aqueduct. [Id]. When Claimant got to that snowy part of the sidewalk, she did not consider taking an alternate route home. Although she did look across to the other side of Glenwood Avenue, she saw that the Aqueduct area of the sidewalk on that side of the street was also snowy and icy. As shown in the bottom left photograph of Exhibit 3, and marked by Claimant with a "y", the sidewalk in front of the Aqueduct area on the opposite side of the street was also covered with snow. Exhibit 4 - a series of three (3) photographs - was also identified by Claimant as depicting the snow and ice on the sidewalk on the opposite side of the street. Claimant described the traffic as "very busy"[FN2], with "cars coming downhill and cars going uphill." Cars were parked on the street as well. To Claimant's knowledge, there was no other way of getting up the hill other than on the sidewalk.

As she crossed the snowy and icy area approximately "two to three steps", she slipped, fell, and was injured. Her left foot made the first contact with ice, and slipped, causing her to fall to the ground. Once she was on the ground, Claimant's classmate helped her up. When Claimant stood up with her friend's assistance, she realized "it was more than what I thought it was, and I couldn't really walk on my left foot." Claimant's friend continued to assist her as she "limped all the way up the hill."

When she arrived home, she called her mother, Jacqueline Singletary,[FN3] who returned from [*3]work and took Claimant to the hospital for treatment.

On cross-examination, Joulé recalled that there had been a school vacation period prior to the day of her fall, so she had not taken the bus and thus not walked on that sidewalk area. Additionally, her mother normally drove her to the bus stop in the morning, as she did on that day. She had therefore not walked on the sidewalk for approximately one (1) week prior to her fall. No snow was melting. She first noticed that the sidewalk area was snow-covered when she was about "6 inches" from the snow covered sidewalk. She indicated that she did not adjust her pace, but had been walking carefully in any event.

Claimant testified that she had never seen anyone shoveling or clearing that portion of the sidewalk and, indeed, that area was always snow covered when it snowed. She had never complained to her mother, nor to anybody else about snow on the sidewalk.

Jacqueline Singletary, Claimant's mother, also testified briefly. She indicated that after her daughter's fall she went to the location of the accident to examine it, and accompanied her attorney the next day to take photographs of the scene. She did not recall her daughter ever complaining about conditions on the sidewalk, nor had she ever observed anyone removing snow from that portion of the sidewalk during the years she had lived on Glenwood Avenue. She herself had never complained about the condition of the sidewalk, nor was she aware of any other person complaining about the condition of the sidewalk. Additionally, Ms. Singletary did not know who owned the sidewalk where Joulé fell.

Portions of the deposition of Alix Sandra Schnee, an employee of the New York State Office of Parks and Recreation for almost 11 years, and currently Park Manager for the Rockefeller State Park Preserve and the Old Croton Aqueduct State Park, were read into the record. In her deposition testimony, Ms. Schnee indicated that the State of New York was the owner of the Old Croton Aqueduct, described as a 26-mile-trail that is intersected and interrupted by streets in many different municipalities along its route. She confirmed that Glenwood Avenue in the City of Yonkers is one such intersecting roadway, and that the trail runs on either side of the street. She stated: "The aqueduct trail ends at the sidewalk, and then continues" on either side of the street.

A small staff supervised by Ms. Schnee maintained the trail itself. Michael Boyle, a manager, handled the day-to-day operations at Old Croton Aqueduct State Park. Although tree trimming and removal, and grass-cutting were performed at the park by State employees, and although the State owned and used snow removal equipment at other locations, the State did not perform any snow or ice removal from the trail itself during the winter months. Furthermore, sidewalks adjacent to the trail, according to Ms. Schnee, were maintained by the local municipalities, including snow and ice removal. The State has never removed snow and ice from the sidewalk at Glenwood Avenue. Ms. Schnee stated that the municipalities were aware of their responsibilities regarding the sidewalks, and, indeed, had any complaints been received by her office concerning sidewalks on Glenwood Avenue adjacent to the trail she would have referred them to the City of Yonkers. Her testimony is uncontradicted.

No other witnesses testified and no other evidence was submitted.

At the close of Claimant's case, Defendant moved to dismiss the claim for failure to state a cause of action, and failure to present a prima facie case. The Court reserved decision on the motions. [*4]

Clearly, Claimant did not establish that the State owned the actual sidewalk in question, and thus the State cannot be liable for any dangerous conditions on a common law basis. ". . . As a landowner, the State is subject to the same rules governing private landowners, that is, the State must act as a reasonable [person] in maintaining [its] property in a reasonably safe condition'. . . (citation omitted)." Green v State of New York, 222 AD2d 553, 554 (2d Dept 1995). Here, Claimant did not enter onto land owned by the State. Glenwood Avenue and its sidewalks are owned by the City of Yonkers.

While as a landowner, courts have treated the State equally - in terms of duty owed - to the duty owed by a private owner, no court has applied this rationale to the State as abutting landowner. As stated by the Court of Appeals, ". . . liability for injures sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the municipality and not the abutting landowner." Hausser v Giunta, 88 NY2d 449, 452 (1996). Absent some statutory or other duty defined in a local ordinance, for example, an abutting landowner is not liable for any injuries sustained as a result of negligent maintenance of an adjoining sidewalk. Municipalities may transfer liability to abutting private landowners when a "local ordinance or statute specifically charges an abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from the breach of that duty . . . (citation omitted)." Ibid at 453.

Defendant argued that Claimant failed to establish that the Defendant owed Claimant any duty in the first instance, or that said duty was breached. Defendant noted that Claimant appeared to be alleging - as referred to in her Claim and in her Verified Bill of Particulars, albeit tangentially - that a provision of the City Code of the City of Yonkers (hereafter City Code or Code) required that the State clear snow and ice from sidewalks adjacent to its property and thus prescribed the duty owed. While Claimant did not submit the Code provision on her direct case, the Court nonetheless takes judicial notice of the provision [see generally Carrington v State of New York, Claim No. 98101, UID #2003-016-024 (Marin, J., March 25, 2002)], given prior notice of her reliance on local ordinances.

Portions of the City Code provide:

"103.8. Duties of owner or occupant. It shall be the duty of every owner or occupant of any house or other building and of every owner of any vacant lot to keep the sidewalks in front of the premises owned or occupied by him clear and clean from snow, ice and dirt.

103.9. Time for compliance. Snow and ice must be removed from such sidewalks for the whole width thereof within six hours after every fall of snow which shall cease in the daytime and before 12:00 noon of the day after any fall of snow which may come in the nighttime.

103.10. Action upon failure to comply. In case such owner or occupant shall not comply with the provisions of this article and shall not keep the sidewalks free from ice and snow as required in this article, the Commissioner of Public Works may cause such work to be done and may cause such ice and snow to be removed." [City Code of the City of Yonkers, Part IX - Public Property and Streets, Chapter 103, Article II, Snow and Ice Removal (adopted December 26, 1911)].

The Code further provides that should the Public Works Commissioner perform such work, a "certificate of the expense" would be filed with the City Council. [See 103.11]. There is no indication that further actions - such as a bill to the landowner - would follow. [*5]

Private landowners, then, in the City of Yonkers, are required to clear snow and ice on sidewalks adjoining their property within specific time constraints. The Court finds, however, that this provision does not apply to the State of New York.

In Dempsey v Manhattan & Bronx Surface Tr. Operating Auth., 214 AD2d 334 (1st Dept 1995), the Appellate Division found that ". . . State agencies are subject to local laws and regulations when acting in a proprietary as opposed to a governmental capacity . . . " Acting as a landlord, the State agency in Dempsey, supra, was clearly exercising a proprietary function. Here, however, the State is merely an abutting landowner, acting in the public interest in maintaining a public park. No revenue is taken in from the trail's operation, for example, and no other indicia of a proprietary function is shown. Thus, the State is acting in a governmental capacity regarding the trail and thus no liability can be assessed against it, despite the local ordinance.

Even if the City Code provision were applicable, the Court of Appeals has held that ". . . where a new right is created, or a new duty imposed by statute, which also gives a remedy for its violation or non-performance, the remedy given is exclusive." City of Rochester v Campbell, 123 NY 405 (1890). In that vein, ". . . [i]n order for a statute, ordinance, or municipal charter to impose tort liability upon an abutting owner for injuries caused by its negligence, the language thereof must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he will be liable to those who are injured." Scalici v City of New York, 215 AD2d 744, 745 (2d Dept 1995). Thus, ". . . [a]n abutting landowner may not be held accountable for failure to remove snow or ice from a public sidewalk based upon violation of an ordinance which does not explicitly impose liability for personal injuries." Norcott v Central Iron Metal Scraps, 214 AD2d 660, 660-661 (2d Dept 1995), see also Kline v New York City, 295 AD2d 481 (2d Dept 2002); Rosetti v City of Yonkers, 288 AD2d 288, 289 (2d Dept 2001).

Here, the only Code provisions regarding what follows any failure to remove snow and ice within the six (6) hour window mentions that the snow and ice may then be removed by the Public Works Commissioner, presumably at the landowner's expense although that is not specifically stated. No liability for personal injuries caused by any failure to remove snow and ice is discussed, nor could any be imposed based upon the cases cited above.

Factually, through Ms. Schnee's uncontradicted deposition testimony, the State concedes it has never cleared the sidewalk abutting its trail along Glenwood Avenue of snow and ice, and that the local municipalities were aware of its policies all along the Old Croton Aqueduct Trail. Claimant's arguments that the State was required to "notify" the City of Yonkers of its practice as a matter of "public policy" lack merit. Other than such general statements concerning policy, and the reference to the Code, Claimant has simply not shown that any liability may be imposed upon the State under these circumstances.

Accordingly, Claim Number 107637 is hereby dismissed in its entirety, for failure to state a cause of action against the State of New York, as well as failure to establish a prima facie case of negligence. All other trial motions not otherwise disposed of are hereby denied.

Let Judgment be entered accordingly. Footnotes

Footnote 1: Jacqueline Clark's claim is a derivative one, premised on the loss of services, aid, comfort and society of her daughter. References to claimant shall refer to Joulé Diaz unless otherwise indicated.

Footnote 2: All quotations are to trial notes or audiotapes unless otherwise indicated.

Footnote 3: Jacqueline Singletary is the former Jacqueline Clarke, Claimant's mother.