Portillo v Clty of Mount Vernon

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Portillo v Clty of Mount Vernon 2013 NY Slip Op 33756(U) December 13, 2013 Supreme Court, Westchester County Docket Number: 54901/2011 Judge: William J. Giacomo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: WESTCHESTER COUNTY CLERK 01/07/2014 1] NYSCEF DOC. NO. 76 To commen~e INDEX NO. 54901/2011 RECEIVED NYSCEF: 01/07/2014 me s.tatut()ry time.fer appeal$ as of dght ~·cwtR 5513(?])r you are adv:ised t<l s$rve a cqpy :of Ulls on:ler1 with notke of entryt uµon au p~rties, SUPREMECQURT.OF THE.STATE OF Ni!\l\fYORK COUNTY Of WSSTCHbSTER PRESENT; HON, WllUAM J. GIA.COMO, J,S,C. UDIA POR''fltLO, Plaintiff, Index Ne. 5490l/20·11 ClTY or MOUNT VERNON, GffY OF f\•10UNT VERNON, Thlrd--Party Plaintiff, ~<1f;1lROPOL!TAN TRANSPORlAT!ON AUTHORffY and METRO NORTH COMMUTER R.A.ILROAD, Third·· Party Defendants, ----------------------------------------------------.,,---------.,.,----········'·.,·.--x The following papers numbered ·1 ki 18 vvere read on thfrd party defendants Metropofltan Transportafa>n Authority ("MTA") and Metro North Comrnuter Railroad's ("~,fotro North") motion for sumrna.r,1 ~udgment dismrssing the third party complaint and defo!'ld$nt City of l\11otn1~ Vernon ("the City"} motion for summary J1Jdgmant di$n1i$Sing the complaint e_~l~JKB.fHi.W.M.~.f;J3_g,Q !V1TA and fv1etro North's Notice of Motion/Affirrnahon/Exhihits___________________________________________________________J.;:~~ Th& City's Nonce of Motion/Afflrmafa)n/Exhlbits ----------------------------------------------------------·---------·----------;4~:~§ Plaintiffs Affidavits in Opposmon to the City's Mo:fa:m!Exhlhits -----~--------------....,....,....,.........tl~Ji tvl'f.A ·and fvh.~tro North'$ Rep~y Affirrnati~"Jn....,..........................................................._. .. _. ..._. .._."'"'""""'"""""""'"""""""1Q [* 2] Based on the foregdng submissions, the third party defendants' motion is GRANTED and defendant's rnotion is DEN~ED. On January 3, 20'11 , plaintiff slipped and fell on ice on a Sldewalk on a pedestrian bridge located at the intersection of South 10•~1 Avenue and VVest 1s~ Street in the City of Mount \lernon, P!ainfrffacknow!e-dged that there was a sign indicating that the bridge \<Vas PlalnMf comrnenced this person?! injury action on ,Al~gust 29, 201 '1 and issue \Vas the MTA and t,Aetro North on August 2, 20'!2 and issue was joined on August 20, 20·12. !n its thkd party ccmp!a&nt, the City alleges that the MTA and Metro North OWTi, maintain and MTA and tvletro North now move tor $Ummary judgment dism@ssing the complaint on the ground that although they rnay O\lVn the bridge, rnalntainlng the sidewai~~ and rom:h>vay of the bridge was the responsibility of the C!ty. In support d their argument, the MTA and Metro North rely on fhe deposition teshmony of Curtis VVoods the Ccmrnissioner 'Thf.! City submitted an affirmation ~n hui:her $upport after subrnitting its' reply \Vlthout seeklng perml$sion from the Court to do so, therefore, that affirmation ~vas not considered.. [* 3] (#fheDepanrnentof Public VVorks for the City. At his deposition, ML \tVoods stated that the City mainu~ined the roadway and sidewalks of the bridge in question fnctuding snow µlowin9, The City v1as responsible for maintaining the sidevvafk since the bridge was. open to pedestrian traffkt The MTA and Metro North also seek the irnposmon of sanctions agalnstthe City for Ws refu$al to dlscontlnue the actiun against them, ln opposith:m, the City argues that since the MTA and/or tv1etro North O\i"vn the bridge they ~re respOn$ib!etorthe acc~dent Futther, the City contends that the M'T"l\anct/or Metro North obstructed the sidewalk and roadway by placing barriers on the bridge thereby creating a hazardous contiitlon. The City also rnoves for surnmary judgment dismissing the complaint on the ground that it dld not have prior written notice pursu~nt to Section 266 of the City Charter~; of me fn opposition, the plaintiff argues that the CHy created the dangerous conditkm vvhkh Gaused her falk P!aintiffstatesthat she was watking on the sidewalk until ne~ringthe end of the bridge where she encountered a large mound of snow which blocked the sk.!e\iva!k. ti had last snowed un December 26, 2010 and Dec.ember 27, 2010. The City's work cre~vs had cleared the snowfrorn the sidewalk anq p~owed it in a rnound near the end of the bridge blocking the entire sidewalk. Since the mound of snmv blocked her path, µ!ah1Uff was forceti to leave the sidewalk and attempt to traverse the roadvvay to get amund 2 Section 205 of the f<.;•lountVernon City Charter provides in relevant part: rm ¢ivH action shall be matntained against the City as a result of injurie$ sustained as a com~equence of any sidewa~k being in a defective cond!Uon unles'S the Cornrnission of Public VVorks received prior written notice of the defect that cai.,~sed the injury and the defect was not repaired v..tthin ·(:l· r$asonable time after receipt of said notice, [* 4] the mound of snow, It appeared to the Ptaintfff that there was water on the road\<vay but vvas otfH.~:r\v~se dear, The road\«vay appeared black, however, as soon as she ~ett the sidevvalk to step on the road she tel!. 0tSCU$$icm A party rnoving for surnrnary judgment must assemble affitmatfi;le proof to estab~ish !ts entitlement to judgment as a matter of ~aw, {Z¥.1ckEYmen v, City qf /\( Y,, 49· NY2d 557 [lB801). ln order to meet its burden ofentiUement to surnffiar)" judgnw.mt as a matter of !avv, the City rnust establish that it did not receive prior written notice of an am~ged the (lXl$tence ofsnow er lee conctmorL {See J\rav~1tz v. County of Suffolk, 40 AD3d i 042 ~2'""i Dept 20071 ferreinJ v. County of Orange, 34 AD3d 724 [2:n'1 Dept 2.0061), MTA and Metro North~sMot.lon The MTA and rvtetrc North have established prima foe.le enm!ement to surnmary Judgment disrnlS$ihg the third p~rty complaint. The City attempts to cre$te an issue of fact by stating that since the ~fl'A ~md l\•,etm North placed barriers on the brkige to prevent vehicle traffic they created the dangerous conditlon which caused plaintiffs fall. Ho\<vever, p!alntifi fe®! v1hen she had to step sMe\•va!k . ~round P~ainHtf does not mention the a large mound of snow vvhich bk>cked the barriers as a Cill)$f:J of her ~cckkmt Moreover, it is undisputed that the City was responsible for the maintenance and snox.v removal of the pedestrian vva~kway. Thus, there is no dismtssing the third party cornp!aint }ssues of fact precluding summary }udgrnent [* 5] Based on the foregoing, the MTA and Metro North's motion for summary judgment d~smissing the third party comp!a~nt 1s GRANTED, however, their app!!c.atlon for sanctions According to plaintiff's deposition testimony, she sfipped and fell ~vhen she stepped on the icy road\!vay because the Sldewa!kwas blocked by a mount of snowcre~ted by the Glty, Further, p~alnHff daims that the ~ce was formed by the melting sno\N from the ~arge mound of snovv \Nhich blocked the sidev.ialk. Therefore, there are issues of fad regarding whether the City created the condition that causerl p~ainUffs f:a!t Based on the foregoing, the City's motion for summary judgment ctlsrnfssing the cornplaint is DENIED. Dated: VVhlte P!ait)S., New York DecetWber i 3, 2013

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