Devita v Town of Brookhaven

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Devita v Town of Brookhaven 2013 NY Slip Op 31477(U) July 1, 2013 Supreme Court, Suffolk County Docket Number: 09-20339 Judge: Hector D. LaSalle Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 09-20339 CAL NO. 12-018800T SUPREME COURT - STATE OF NEW YORK I.A.S. PART 48 - SUFFOLK COUNTY PRESENT: Hon. HECTOR D. LaSALLE Justice of the Supreme Court MOTION DATE 9-27-12 (#005) MOTION DATE 12- 14- 12 (#006) MOTION DATE 12- 18-12 (#007) ADJ. DATE 2-26- 13 Mot. Seq. # 005 - MG # 006 - MD # 007 - MG ................................................................ X RONALD DEVITA. Plaintiff, - against - SIBEN & SIBEN, LLP Attorney for Plaintiff 90 East Main Street Bay Shore, New York 1 1706 VINCENT D. MCNAMARA, ESQ. Attorney for Defendant Town of Brookhaven 1045 Oyster Bay Road, Tower Square E. Norwich, New York 1 1732 CARROLL, MCNULTY & KULL, LLC Attorney for Defendant Rosemar Contracting 570 Lexington Avenue, 8th Floor New York, New York 10022 AHMUTY, DEMERS & MCMANUS, ESQS. Attorney for Defendant Intercounty Paving 200 I.U. Willets Road Albertson, New York 1 1507 Upon the following papers numbered 1 t o 6 3 read on these motions to renew and reargue & for summary iudanient ;Notice ol'Motion! Order to Show Cause and supporting papers l00S)l - 28, (006)29-42; (007) 43-52; Notice ofcross Motion and supporting papers -: Answering Affidavits and supporting papers 53-54-untabbed; 55-56; Replying Affidavits and supporting papers 57-58; 59-60; 6 1-61; Ollier< 3; ( b ) it is, ORDERED that motion (005) by the defendant, Rosemar Contracting, Inc., pursuant to CPLR 222 1(e) for an order granting renewal of its prior motion (003), which was brought pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint and all cross claims asserted against it, and which was denied nit11 leave to renew upon completion of discovery in the consolidated action by order dated June 29, [* 2] Devita v Town of Broolthaven Index No. 09-20339 Page No. 2 20 1 1 (Tanenbaum. .I.). is granted as to renewal, and upon renewal, summary judgment dismissing the complaint and all cross claims asserted against Rosemar Contracting, Inc. is granted; and it is further ORDERED that motion (006) by the defendant, Town of Brookhaven, pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint and any cross claims asserted against it is denied; and it is further ORDERED that motion (007) by the defendant, Intercounty Paving Associates, LLC, pursuant to CPLR 32 12 fbr an order granting summary judgment dismissing the Complaint and all cross claims asserted against it is granted. In this negligence action, the plaintiff, Ronald Devita, alleges that he sustained injury on October 26, 2008. on a broken section of the curb located in front of the premises at 25 Matsunaye Drive, in Medford, New York The roadway at issue had been milled by defendant Intercounty Paving Associates, LLC in October 2007. l acking \vas applied thereafter by the Town of Brookhaven. Asphalt was applied in June 2008 to the road surface by defendant Rosemar Contracting, Inc. It is alleged that the defective condition occurred after the road ivork was started in October 2007, and prior to its completion in June 2008. It is alleged that the defendants crcatecl thc alleged defective condition, and that the Town of Brookhaven, who inspected the work being performed by co-defendants Intercounty and Rosemar, had actual and constructive notice of the condition and negligentlq failed to repair the condition, causing the plaintiff to sustain injury on the defective curb. r . I he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. I o grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends crfAnininls vAssociatedFurMfrs., 46NY2d 1065,416NYS2d 790 [1979];Si/lman v Twentieth Century-Fox Fi/m Corporntiori, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving cntitlement tosummaryjudgiiieiit (WinegradvN.Y.U.Medica/Center,64NY2d 851,487NYS2d 316 [1985]). Failurc to make such a showing requires denial of the motion, regardless of the sufficiency of the (opposing papers ( Winegrnd v N. Y. U. Medicd Center, supra). Once such proof has been offered, the burden then shifts to the opposing party. who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ...and must show facts sufficient to require a trial of any issue of fact (CPLR 3212[b]; Zirckrrninn v Citv ofNeiv Yovk, 49 NY2d 557,427 NYS2d 595 [ 19801). The opposing party must assemble, l a y bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable ofbeing established (Cnstvo v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [1981]). __ I n motion (00.5)- defendant Rosemar Contracting, Inc. (Rosemar) seeks summary judgment dismissing the complaint and all cross claims asserted against it on the bases that its responsibility was to pave the road; the area was to be inspected by the Town of Brookhaven and not by Rosemar prior to Rosemar performing the paving; Rosemar s work was supervised by the Town of Brookhaven; even if the curb were damaged, such condition would not prohibit Rosemar from performing its duties; and Rosemar did not cause or create the alleged defect of the curb upon which the plaintiff fell. In support of this application, Rosemar has submitted, inter alia, an attorney s affirmation; copies of the orders dated July 2 1, 201 1 and June 9,20 1 1 (Tanenbaum, J.); copy of the prior motion which it seeks to renew; copies of the summons and complaints, the answers served b~ defendants Town of Brookhaven and Rosemar, and plaintiffs bill of particulars; copy of a contract dated May 4.2007; unsigned insurance requirements; unsigned but certified copy of the 50-h hearing transcript of [* 3] De\ ita v Town ot Brookhaven Index No. 09-20339 Page No. 3 Ronald De\ ita dated April 13,2009; copies of the unsigned but certified transcripts of the examinations before trial of Ronald Devita dated September 13,20 10 and April 4,20 12, Rosemar Contracting by Thomas Ducz dated September 13,2010, Town of Brookhaven by Suzanne Mauro dated September 13,2010, Town of Brookhaven by Michael Murphy dated June 19,2012, and Intercounty Paving Associates by Joseph LaPlaca dated June 19, 20 12: the signed and certified transcript of the examinations of Rosemar Contracting by John Klaus dated June I O . 2012, and non-party Jeanniarie J. Devita dated July 20, 2012; photographs; invoices; and a Town of 13rookhaven purchase order. Although many of the deposition transcripts are not signed and are not accompanied with proof of service pursuant to CPLR 3 1 16, in searching the record, this court has found signed transcripts which are considered, except as to non-party witness Jeanmarie J. Devita (see Martinez v 123-16 Liber[vi4vc).Recrl47 Corp.. 47 AD3d 901,850 NYS2d 201 [2d Dept 20081; McDonnldvMaus, 38 AD3d 727, 832 NYS2d 291 (2d Dept 20071; Piiza v Flik Intf. Corp., 25 AD3d 772, 808 NYS2d 752 [2d Dept 2006]), Lvliose transcript is not in admissible form to be considered. I n motion (O06), the Town of Brookhaven (Brookhaven) seeks summary judgment on the basis that it did not receive prior written notice of the alleged defect, and it did not cause or create the alleged defective condition which did not occur, and was not visible, until the plaintiff stepped on the curb. In support of this application, Brookhaven has submitted, inter alia, an attorney s affirmation; a copy of the summons and complaint, its answer and amended answer, the amended verified answers of Intercounty Paving Associates and Rosemar Contracting, and plaintiffs bill of particulars; the signed and certified copies of the plaintiffs 50-11 hearing transcript dated April 13, 2009, his deposition trailscript dated September 13, 201 0 and April 4,20 10; the unsigned transcripts ofthe examinations before trial of the Town of Brookhaven by Suzanne Mauro dated September 1 3.20 I O and Michael Murphy dated June 19,20 12 which are considered as adopted as accurate by tlic nim ing defendant (see Aslzifv Wan Ok Lee, 57 AD3d 700, 868 NYS2d 906 [2d Dept 20081; the unsigned but certified transcript of the examination before trial of non-party Jeanmarie Devita dated July 20, 2012; the iinsigned but certified transcript of the examination before trial of Intercounty Paving by Joseph LaPlaca; and photographs. I n motion (0071, Intercounty Paving Associates, LLC (Intercounty) seeks summary judgment dismissing thc complaint on the bases that when it installed the milling work at the site of the incident, the Town was present and inspected the site and that there were no complaints about its work; that it owed no duty to the plaintiff as it was 3 tliird-party contractor; that it did not damage the curb which remained intact for one year I ollowing the milling work and. thus, it received no actual or constructive notice of the condition. Intercounty incorporates by reference its co-defendants motions for summary judgment, and submits, inter alia, an attorney s allirmation: plaintiffs bill of particulars; photographs; signed and certified transcript ofthe examination before trial ofRonald Devita dated April 4,20 12; the unsigned and uiicertified transcript of non-party Jeanmarie Devita dated J d y 20. 201 2: the unsigned transcript of Joseph LaPlaca on behalf of Intercounty with proof of mailing ofthe same and \vhicli is considered as adopted as accurate by the moving defendant; and the affidavit of Joseph I>;I I I ;ICa. Iionald Dcvita tcstified to the extent that he currently rents the house at 27 Matsunaye Drive., which is nest door to. and just north of, 25 Matsunaye Drive, which is where he resided on October 26,2008 when the accident occurred. 25 Matsunaye Drive was owned by Eugene Riggio, and he rented the premises from him. There t i a s no \tritten lease. He later testified that it was his wife s father s house. He and his wife here in the process ofgctting a divorce, but he went to that address on many occasions over the years since 1989 when they \$ere married. Prior to the accident, he had been living there for about a year. The accident occurred 011 the [* 4] De\ ita 1 Towii of Brool\haven Inde..i No. 09-20339 Page No. 4 curbside in front of25 Matsunaye between 3:OO a.m. or 4:00 a.m. It was dark outside, and there was a streetlight located about ten feet away. There were no lights on at his home, but some of the neighbors lights were Illuminated. I-le described the lighting in the area as poor. There were no sidewalks, just a curb alongside the road. I le parked his truck curbside in front of his house, exited his truck, made a left around behind the back of it. and had walked about four feet from the rear bumper of his truck when the accident occurred. Devita tcstilicd that he stepped on the curb with his left foot and the curb gave way or collapsed. He had not looked dot$ n when he walked around his truck until he reached the curb. Devita testified that the curb had been in place the entire year that he lived at that address. He never noticed any cracks in it or damage to it. He did not know lio\v long thc curb had been in place. There were leaves on the ground and on the curb, about six inches deep. 1 herc had been no raking ofhis property or the leaves since the year before. The day after the accident, he took pictures of the curb. 1-Ie testified that he believed equipment damaged the curb when the surface of the street \vas being scratched prior to repaving or asphalting it in the summer of 2008. Devita testified that he did not \ \ itness any damage to the curb, and he did not witness the road work as he thought it was repaved one day while he c\ ;IS a \ \ a j . No cnrbing was replaced when the road work was done. Prior to the accident, he did not make in! complaints to anyone about the curbing in front of 25 Matsunaye Drive, and knew of no one who did. 1 Iourter. he testified, his wife was at home when two men who had been working on the road approached and ad\ isccl that the curb would be repaired. .Ioseph LaPlaca averred that he has been employed by Intercounty Paving Associates a:; Milling Supcivisor for fiftecn years. He stated that Intercounty was hired by the Town ofRrookhaven to perform milling \\orl, on Matsunaye Drive as part of a road resurfacing project which included the road in front of 25 Matsunaye Drive. pursuant to a purchi3se order from the Town to Brookhaven. He described milling as scarifying the road o r tal\ing asphalt off the road with a milling machine prior to the application of new asphalt. He described the mnchine as having a big dium filled with carbide teeth, and as the drum spins and the machine propels forward, i t grounds the asphalt right up to the curb. Part of the milling machine, the steel side gate, would actually ride direct11 on top ofthe curb about three to six inches, exerting ever so slight pressure, very minimal. A sweeper and perhaps a jackhaminer were also used. In October, 2007, his crew with Intercounty performed the milling \\orl< at that location. probably in less than one day. Thereafter, no further work was performed by Intercounty at that site. 1,aPIaca continued that he was present while Intercounty performed the milling work on Matsunaye l h i \ e at the curb in front of the premises, and that Intercounty did not cause any damage to the curb in front of the premises. or he mould have heard about it from the Town. While performing the milling work, the Town 01 Rrool~lia~ inspector was present. Intercounty did not receive any complaints at any time concerning en iimagc to the curb in front of 25 Matsunaye Drive, in Medford. LaPlaca testified that if there was no application ot thc nsphalt to the milled surface thereafter, that erosion would gouge out more of the road and subhxe, and thc curb could become undermined. 1 homas Ducz tcstified to the extent that he has been an operations supervisor for Rosemar Construction sincc 1990. Ije described it as an asphalt paving company and stated that it was the same company as Rosemar Contracting, Inc. Pursuant to a purchase order issued from the Town of Brookhaven, Rosemar repaved hlritsunaqc Drive in 2008, and was paid on June 16, 2008. The inspector from the Town of Brookhaven inspectcd the site. Bob IClaus, the job super from Rosemar, would have been the person in contact with the inspector f roni the To\\.n who inspected the job prior to payment being made to Rosemar. The curbing would not need to be i n a n y speciiic condition for Rosemar to effectuate its paving. Broken curbing would not interfere \I ill1 the paving. The T o ~ v n inspector would be present at the site the morning they begin to pave. Rosemar does not inspcct curbing or report brolteii curbing prior to paving as curbing is not its responsibility. A diesel- [* 5] po\\ered pa\ cr lays the asphalt and a roller compacts it. The paver and roller may come into contact with the curb that abuts the roadway, but it would be highly unlikely that the machine would break the curbing. If there was broken curbing prior to performing the paving, it would be removed prior to paving. He stated that the Toun inspector walks alongside tlie machine as the asphalt is being applied. .lohn Klaus testified to the extent that he lias been the general superintendent overseeing the daily field operations for Rosemar s paving business for five years. He was aware that paving work was done by Rosemar Ihr the Town of Rrookha~en Matsunaye Drive pursuant to a purcliase order issued by Brookhaven Town. at After tlic milling work was done, tlie Town of Brookhaven swept the roadway and had another subcontractor, Bimasco (Bituminous Road Runner), apply a tack coat over the milled area prior to Rosemar applying the asphalt. Ile did not know the interval, but stated the industry standard was about a week or two between milling and asphalting. As part ofthe milling work, typically the machines do not make contact with the curbing. He did not kno\\ if he \\ as present for the paving in the area of 25 Matsunaye Drive. When shown a picture of the curbing. Klaus stated that lie never saw a milling machine cause such damage. Notices were hand delivered by Rosemar to residents one o r two days prior to the work being performed. He added that if a curb were broken p r i o r to pa\ping by Rosemar, they would be able to pave anyway. Suzanne Mauro tcstified to the extent that she is aprinciple clerk employed by tlie Brookhaven Highway Ikpartiiient Ihr sc\ enteen years. She handles claim and litigation that come into the department via a notice of claim, and scnds a inemo to tlie engineering department with the location and asks whether the Town maintains, and has jurisdiction. over tlie area. She also sends a memo to the Town Clerk s Office asking them to check their prior notices of defect for the location indicated on the notice of claim. She sends a copy to the general li~remanadvising of the specific area indicated to see if there is a problem or if something has to be repaired. She did a computer check for three years prior to the date of loss on the instant action searching for notices of defect regarding the notice of claim. When she did her search on the computer regarding this incident, the search did not reflect any road defect or curb defect within the incident location. Mauro continued that in October 2007. Intercounty did milling on the subject road pursuant to an agreement with the Town of Brool\lia\wi. Slit: believcd there was also an agreement between the Town and Rosemar for paving the road, \vhich \\as to be done after the milling. She continued that Rosemar performed the paving in June 2008, under the super\ision of Michael Murphy from the Town of Brookhaven who filled out an inspection report. hlichael Murphy testified to the extent that he is employed by the Town of Brookhaven Highway Departnient as deputy supervisor. From 2007 through 2008, lie was the inspector for the Highway Department, o\ ersecing the \ w r l c being performed by contractors to assure the work conformed to specifications. He completed an inspection report for tlie paving work done in the area of 25 Matsunaye Drive, which he thought \ i a s i n 2008. IIe stated that it would be unusual for the milling work to be done six to eight months before it \\as p i \ ed. id call^. paving would be done in the warmer weather. After the milling work was completed, and prior to the pnving, a tack coat was sprayed over the road surface by a truck. While he was at the site inspecting he the \ \ o r I ~ did not observe any conditions depicted in the photographs showing the condition of tlie curb, and he had no k n o ledge as to the cause of the damage to the curb. Had he observed damage to the curb, he would ~ ha\re reported it to l o i n at the Nighway Department and a crew would have been sent out to fix the curb. While inspccting thc pa\)ingjob, he did not see Rosemar damage any curbs. With tlie milling work, he felt any contact \\it11 the milling machine and the curb would be minimal, and the curb wouldn t be used as a gauge. He was not a\\arc ol any complaints concerning the curbing prior to and including October 26, 2008, and knew of no one claiming to lime tripped or fallen on the curb at the location during that time period. [* 6] De\ ita 1o\vn of Uroolthaven IIldex NO. 09-20339 Page No. 6 \/ A defendant who moves for summary judgment in a slip and fall case has the initial burden of making a prima hcie sIio\ving that it neither created the dangerous condition nor had actual or constructive notice of its existence for 21 sufticient length of time to discover and remedy it (Lee o Port Chester Costo Wholesale, 82 iZ113d 832, 91 8 NYS2d 549 [2d Dept 201 13). Here, the adduced testimonies establish prima facie entitlement to summar! jiidgnien t dismissing the complaint as to defendants Intercounty Paving Associates and Rosemar Contracting on the basis they did not cause or create the broken curb at 25 Matsunaye Drive, Medford. They \vere not owners of the land where the condition occurred, and performed milling and paving in the location pursuant to a contract with the Town of Brookhaven. There was no privity of contract between them and the plaintifl . They established that they did not cause damage to the curbing and did not observe any damage at the time Repair of the curbing was the responsibility of the Town of Brookhaven, and they could mill and pave whether or not there was defective curbing. Counsel for plaintiff, in opposing this motion, has submitted multiplc deposition transcripts as noted above, and specifically stated that no one has yet identified as to who actually caused thc damaged curb as when it was done no one was notified or when it was done it was not obsen cd and not reported. It is determined that no evidentiary proof has been submitted by plaintiff dtmonstrating that either Intercounty Paving of Rosemar Contracting caused the condition of the broken curb upon \vhich the plaintiff claims to lime sustained injury. Thus, no factual issues have been raised by plaintiff to preclude suinmary judgment from being granted to Intercounty Paving and Rosemar Contracting. Accordingly, motions (005) and (007) by defendants Intercounty Paving Associates, LLC and Rosemar Contracting, Inc. are granted and the complaint and all cross claims asserted against them are dismissed. Toun Law s6S-a(2) provides in pertinent part that no civil action shall be maintained against ii town for ciamnges or inliiries to person or property sustained by reason of any defective, dangerous. unsafe, out -of-repair or obstructed sidcwalks, unless written notice thereof, specifying the particular place, was actually given to the I o n n Clerk o r to the Commissioner of the Department of Public Works of the Town and there was a failure or neglcct to cause such defective, dangerous, unsafe, out-of-repair or obstructed sidewalks to be remedied, ... or to ninlte thc place otherwise reasonably safe within a reasonable time after receipt of such notice. A defective curb rcquircs \witten notice to a Town (see Bevner v Town ofHuntington, 304 AD2d 5 13,757 NYS2d 585 [2d Ilept 20031). There are only two exceptions to the statutory rule requiring prior writtcn notice of a defective condition (Tehiroglir et nl ve Copingue Memorial Public Librnry and Town of Babylon, 2008 NY Slip op 305271 1; [Sup C t. Sillfolk County 20081). If the municipality created the dangerous condition by an affirmative act o r negligence, the prior notice provision does not apply (Wald v County o Nnssnu et nl, 2009 NY Slip Op f -3 187411 [ S u p Ct. Nassau County 20091, citing from Amabile v City of Buffalo, 93 NY2d 471,693 NYS2d 77 11 999 I). The second exception to the prior written notice requirement is if a special use confers a special benefit f upon tlic locality (Armbike v City o Buffalo, supra). Constructive notice ofa defect does not satisfy the written notice requirement (Amabile et nl v City of Buffalo, supra). Recurrence of a condition does not abrogate the need i or prior written notice (Rosnrio v Lnvonzn Construction Covp and Incorpornted Village of Floral Park, 3009 Slip Op 30487U (Sup Ct, Nassau County 20091). I lerc. tlic 1o\vn of Brookhaven has demonstrated prima facie through the adduced testimonies that it did not rccci\ c tlic requisite prior written notice of the alleged defective condition of the curb. The burden, thus, shiltcd to the plaintiff to demonstrate that the Town did receive prior written notice or that there exists an [* 7] I k v i t a \) Toivn of Brookhaven Index No. 09-20339 Page N o . 7 exception to the notice requirement. The plaintiff thereafter, did not demonstrate that indeed prior written iiotice of the defective condition was provided to the Town of Brookhaven, as required by Town Code of the Town oi Brookhaven 5 84.1 ( A )and (B). Even if it is claimed that a Town employee had actual notice of the Condition complained of, prior written notice is still required. 4 prior written notice statute does not protect a municipality from liability if it can be proven that the locality created the defect or hazard through an affirmative act of negligence (San Mnrco v VillagdTown of ,l.foirritRisco. 16 NY3d 1 1 1 , 9 19 NYS2d 459 [2010]). While liability may not attach if the plaintiff was injured on a sidewalk abutting the owner s property, it may attach if the accident resulted from a dangerous condition of the curb (Viicetovic v Epsom Downs, Inc., 10 NY3d 5 17, 860 NYS2d 429 [2008]; see also Yousefv Lee, 103 AD3d 542.959 NYS2d 440 [ 1st Dept 20131). However, it is determined in the instant action that there are i actual issues concerning whether or not the Town of Brookhaven failed to properly inspect and maintain the ullegcd defective curbing, whether it had actual or constructive notice of the alleged defective condition of the curb, and whether it fiiiled to remedy said condition after its occurrence. The plaintifftestified that two men who had been working on the road from the Town approached the house while his wife was home prior to the accident and advised that the curbing was to be fixed. There is also a factual issue concerning whether the Town had constructive notice of the condition complained of. To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant or its employees to discover and remedy it (Ferrigno v County of Suffolk, 60 AD3d 726, 875 NYS2d 202 [2d Dept 20091; Strrrnacher 1 Waldbautn, Inc., 274 AD2d 572,716 NYS2d 573 [2d Dept 20001). There are factual issues concerning the length of time the condition existed prior to the accident. These factual issues relative to nctitnl and construct notice by the Town of Brookhaven preclude summary judgment dismissing the complaint against the l owii (see Hillinrd v Town of Greenburgh, 301 AD2d 572, 754 NYS2d 29 [2d Dept 20031). Accordingly, motion (006) by the Town of Brookhaven for summary judgment granting dismissal of the complaint is denied. The fhregoing constitutes the Order of this Court. Dated: July I , 2013 Riverhcad, NY __.__ FINAL DISPOSITION X NON-FINAL DISPOSITION

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