Lawler v City of Yonkers
Annotate this CaseDecided on August 21, 2006
Supreme Court, Westchester County
Bernadette A. Lawler, Plaintiff,
against
City of Yonkers, Defendant.
21029/02
Frank J. Rubino
Corporation Counsel for Deft. City of Yonkers
City Hall, Room 300
Yonkers, New York 10701 John E. Lawler, Esq.
Atty. For Pltf.
648 Yonkers Avenue
Yonkers, New York 10704
Mary H. Smith, J.
This is an action to recover for personal injuries allegedly sustained by plaintiff on September 9,
2001, as a result of her tripping and falling on a defective sidewalk condition in the City of
Yonkers. Specifically, plaintiff had testified at her examination before trial that the defective
condition was a "huge rock" sitting in a hole in the concrete.
The City now is moving for judgment dismissing this action as a matter of law based upon plaintiff's failure to both have alleged in her complaint and to have demonstrated as a condition precedent to suit compliance with the applicable laws requiring prior written notification regarding the allegedly dangerous and defective sidewalk condition.
In opposition to this dispositive motion, plaintiff has submitted an affidavit from geologist Professor Charles Merguerian, PhD, who opines, after his observing the alleged sidewalk condition on August 2, 2006, that the rock, irregular and angular in shape [*2]and measuring 33 inches long, 4.5 inches high and 7 inches wide, is the protrusion of a large buried glacial boulder that had been deposited between 18,000 and 10,000 years ago. He further states that the City did not complete the section of the sidewalk where the rock appears, having laid only four of the necessary six squares and skipping over the area of the rock. Instead of removing the top of the rock and laying the other two concrete squares, Professor Merguerian states that someone placed a mass of lumpy, rough and uneven asphalt, 4 feet wide and 7 feet long, which surrounds the rock; he opines it had been placed there less than 20 years ago and that it appears to be the same as that used to pave the street. According to Professor Merguerian, the placement of the asphalt created an unsafe and dangerous condition for pedestrians who do not expect to encounter a large rock in the middle of a Yonkers sidewalk. Further, he states that if one's foot strikes the rock and the person's foot begins to slide, the slide and fall will be exacerbated because of the bumpy surface abutting the rock. Also, Professor Merguerian claims that the grayish tan color of the rock blends with the abutting asphalt's black flecked gray, decreasing one's perception of the protruding rock.
Plaintiff also offers an affidavit/report from professional engineer Carlo Joseph Calvi, who had examined the sidewalk location in issue both in May, 2004 and on October 31, 2005. In his report, he details a physical description of the rock and the surrounding, sloping sidewalk area. According to Mr. Calvi, in addition to various other surrounding defective sidewalk conditions, the 10- foot section of the sidewalk consisting of a blacktop surface is "broken, uneven, warped and lacking in continuous or smooth surface," and within this area is the "highly unusual" rock protrusion, which is situated directly in the path of pedestrians using the sidewalk. In his opinion, "the overall conditions present serious hazards to all pedestrians who traverse the area," and the condition is so severe that either the sidewalk should have been repaired years ago or closed to pedestrian traffic. He notes, albeit without specific identification, that the condition does not comply with specifications and standards of the City Engineer of the City of Yonkers for construction and maintenance of sidewalks and curbs.
Section 24-11 of the Charter of the City of Yonkers provides
in pertinent part that:
[*3]
(1) No civil action shall be maintained against the city
... for ... injury to person ... sustained in consequence
of any street ... sidewalk ... or any portion of any of
the foregoing ... being out of repair, unsafe, dangerous
or obstructed, unless it appears that written notice of
the defective, unsafe, dangerous or obstructed condition,
was actually given to the Commissioner of the Department
of Public Works ... by certified or registered mail ...
The law is well settled that the failure to plead compliance with a prior written notice statute mandates dismissal of the action. See Cassuto v. City of New York, 23 AD3d 423 (2nd Dept. 2005); Cuccia v. City of New York, 22 AD3d 516 (2nd Dept. 2005); Estrada v. City of New York, 273 AD2d 194 (2nd Dept. 2000); Becker v. City of New York, 131 AD2d 413 (2nd Dept. 1987).
Moreover, an inability to establish compliance with the prior written notice requirement also mandates dismissal of the action. See Baez v. City of New York, 236 AD2d 305 (1st Dept. 1997).
Here, the City prima facie had established its entitlement to judgment by submitting the affidavit of Alan Portanova, Budget Analyst for the City of Yonkers, wherein he avers that he had conducted a search of the Department of Public Works' work records for any prior written notice that the City had prior to and including September 9, 2001, concerning an alleged defective sidewalk condition at the site of plaintiff's fall and he found no such record.
Defendant City also submits an affidavit from John Michalak, an engineer for the City of Yonkers, and he avers that he had conducted a search of the engineering records for all sidewalk permits and resurfacing contracts regarding the repair of the sidewalk location where plaintiff fell for three years prior to September 9, 2001 and no such records were found.
The foregoing demonstrates that plaintiff has failed to plead compliance with the prior written notice requirement and that no prior written notice was in fact ever provided. Plaintiff's contention that the municipality had actual knowledge of the alleged defect, even if correct, does not avoid the notice requirement. See Pagillo v. City of Oneonta, 25 AD3d 1044 (3rd Dept. 2006), lv. to app. den, (June 29, 2006); Oswald v. City of Niagara Falls, 13 AD3d 1155 (4th Dept. 2004).
Plaintiff's attempt to raise a triable issue of fact based upon defendant's having created the defective sidewalk condition must fail, as same is based solely upon "surmise, conjecture and [*4]suspicion." Rendon v. Castle Realty, 28 AD3d 532 (2nd Dept. 2006); Palone v. City of New York, 5 AD3d 750 (2nd Dept. 2004). Indeed, plaintiff nor her experts offer any evidence to support the claim that the City was responsible for having placed macadam in a bumpy and uneven manner around the protruding rock, particularly where the City does not own the abutting properties. Cf. Fuhrmann v. City of Binghamton, _ AD3d _, 818 NYS2d 670 {31 AD3d 1036} (3rd Dept. 2006). Mr. Calvi's affidavit only addressed the defective sidewalk condition; he did not offer any opinion regarding the City's having created the defective condition. Professor Merguerian's observation of the site did not occur until approximately five years after plaintiff's accident, and thus his description of the condition of the location necessarily is limited by such time circumstance. In any event, the failure to repair a defective sidewalk condition is not affirmative behavior necessary to establish that the City had created the defective condition. See Reich v. Meltzer, 21 AD3d 543 (2nd Dept. 2005). While Professor Merguerian did offer his opinion that the macadam surrounding the rock "appears" to be the same as that used on the street and that it was placed there approximately twenty years ago, same is mere surmise and not based upon his examination of any sidewalk or road work records.
As plaintiff has failed to raise any triable issue of fact with respect to defendant's evidence
that plaintiff has failed to both plead and demonstrate compliance with the prior written notice
requirement, defendant is entitled to judgment dismissing this action.
Dated: August 21, 2006
White Plains, New York
_________________________________
MARY H. SMITH
J.S.C.
Frank J. Rubino
Corporation Counsel for Deft. City of Yonkers
City Hall, Room 300
Yonkers, New York 10701
[*5]
John E. Lawler, Esq.
Atty. For Pltf.
648 Yonkers Avenue
Yonkers, New York 10704
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