Roemer v Village of Ardsley

[*1] Roemer v Village of Ardsley 2015 NY Slip Op 51614(U) Decided on November 9, 2015 Supreme Court, Westchester County Ruderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 9, 2015
Supreme Court, Westchester County

Ronald Roemer, Plaintiff,

against

Village of Ardsley, Defendant.



54086/2013



Donald L. Frum, Esq.

Gambeski & Frum, for defendant

565 Taxter Road, Suite 220

Elmsford, New York 10523

914 347-5522

Anthony Pirrotti, Jr., Esq.

Pirrotti & Glatt Law Firm PLLC, for plaintiff

2 Overhill Road, Suite 200

Scarsdale, New York 10583

914 723-4333
Terry Jane Ruderman, J.

The following papers were considered in connection with the defendant's motion for summary judgment on the issue of liability:

Notice of motion, affirmation, exhibits A — J1

Notice of cross motion, exhibits A — C2

Affirmation in opposition and in reply3

Reply4

The plaintiff commenced this action to recover damages for an alleged slip-and-fall accident which occurred on December 23, 2011, at approximately 6:05 a.m., on the public sidewalk in front of premises at 615 Saw Mill River Road (Route 9A) in the Village of Ardsley (the Village). It is not disputed that Saw Mill River Road is a New York State road. Plaintiff tripped and fell over a [*2]metal "stub" embedded in the sidewalk to which a street sign had previously been attached. The parties surmise, although there is no evidence in support of this theory, that the street sign had been struck and knocked down by a motor vehicle. Unidentified person(s) had removed the sign from its original location and attached it to a nearby telephone pole with tape.

After the accident, plaintiff met with Richard Thompson, the Village's General Foreman, who oversees the day-to-day operation of the Department of Public Works. The plaintiff had known Thompson for a number of years. Thompson dispatched a worker to place an orange "cone" over the metal stub. At Thompson's request, the presence of the "stub" was reported to the State Department of Transportation, which removed the "stub" and relocated the sign. Thompson testified at an examination before trial that he had no reports or knowledge of an accident which involved the sign, the presence of the metal "stub" in the sidewalk, or the presence of the sign taped to a nearby telephone pole.

The defendant Village moves to dismiss the complaint on two separate grounds. Initially, the defendant argues that the maintenance of the sign and the post is the responsibility of the State. Secondly, the defendant argues that it is not liable as no prior written notice of the presence of the sidewalk defect had been given to the Village Clerk as required by Village of Ardsley Code § 140-1, which provides that, "[n]o civil action shall be maintained against the Village of Ardsley or any of its employees . . . by reason of any sidewalk . . . being defective, out of repair, unsafe, dangerous or obstructed . . . unless written notice . . . was actually given to the Village Clerk . . . ." Defendant submits the affidavit of the Village Clerk attesting that a search was made of written complaints and notices of claim for a five year period prior to the accident, and no record was located.

In opposition, plaintiff cross-moves to dismiss the defendant's affirmative defense based on the Village's prior written notice law. The plaintiff maintains that although Route 9A is a State Road, the obligation to maintain the sidewalk and remove the metal "stub" remained with the Village. In this regard, the State's witness, Dyan Rajasingham, an engineer responsible for overseeing the maintenance of Route 9A in Westchester County, testified that the agreement with the Village regarding the roadway provided that the sidewalks would be maintained by the Village under Highway Law § 46. Rajasingham further testified in essence that the State owned the sign and the post (and thus effectuated the removal of the stub and relocation of the sign), but that the Village also had an obligation to remove the sidewalk obstruction. (Notice of Cross-Motion, Ex. C, Rajasingham EBT at 70 — 71.)

In addition, plaintiff contends that the prior written notice requirement does not preclude the present action. Plaintiff asserts that Village of Ardsley Code § 140-2 provides that, "All such written notices [referring to notices under Code § 140-1] received by the Village of Ardsley shall be forwarded to the Village Clerk or the Deputy Village Clerk within five days of receipt."[FN1] Plaintiff points to Thompson's deposition testimony in which he stated that the Village Department of Public Works "takes" complaints regarding sidewalks, "and we deal with them on a case-by-case basis . . . . If they're major, they're logged. If they're not — if they're jobs that can be taken care of on the run, they're done so." (Notice of Cross-Motion, Ex. B, Thompson EBT at 49 — 50.) Although [*3]Thompson testified that he conducted a search and no complaint had been received concerning the sign or the sidewalk, based on the fact that Thompson testified that his department did not "log" all complaints, plaintiff argues that the Village did not record all of the complaints received, and thus may not rely on the prior written notice law.

Plaintiff further argues that Thompson, in his capacity as General Foreman, should have observed that the sign was knocked down and affixed to a tree in his travels in and through the Village. Based on the contention that Thompson should have observed the sign taped to a telephone pole and should have observed the sidewalk defect, plaintiff cross-moves to dismiss the Village's prior written notice defense.

Analysis

The court's function on this motion for summary judgment is issue finding rather than issue determination. (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue. (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978].) The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party. (Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824 [2014].) The defendant establishes a prima facie case under a prior written notice law by the submission of an affidavit from the designated municipal employee indicating that a record search does not reveal that a notice was received for the subject defective condition. (Gonzalez v. Town of Hempstead, 124 AD3d 719 [2d Dept. 2015]; Chirco v. City of Long Beach, 106 AD3d 941 [2d Dept. 2013].)

Although the Village correctly maintains that it does not own the roadway or the sign, Highway Law § 46 provides that, "[a]ny sidewalks, sewers, water mains, curbs, paved gutters, conduits, facilities and appurtenances that are provided pursuant to this section, shall be maintained or shall be continued to be maintained, as the case may be, by the village in which they are located . . . ." In Flynn v. North Hempstead (97 AD2d 430 [2d Dept. 1983]), the Second Department construed Highway Law, § 140, subd 18, which imposes a similar obligation on Towns to maintain the sidewalk adjacent to a State highway. In that case, plaintiff tripped and fell over a metal traffic signpost which was lying in the sidewalk area, sustaining physical injury. The Court affirmed Special Term's determination that the town had a duty to maintain the sidewalk adjacent to Jericho Turnpike, both because the accident occurred within the sidewalk area, and because defendant town has a duty to maintain the sidewalk adjacent to a State highway.

Flynn v. North Hempstead suggests that the Village here had a duty to repair the broken signpost. However, it is ultimately not necessary for this Court to determine whether the Village had a duty to repair the sidewalk condition caused by the metal "stub," because even if it did, the absence of prior written notice is dispositive of the present motion.

Plaintiff advances two arguments why the prior written notice law does not apply under the facts presented here. The first is based on the contention that Thompson, as the Village's General Foreman, should have observed the sign or the broken "stub" in his numerous travels through the Village. The second is that the Village Department of Public Works does not "log" all complaints, and thus does not forward all complaints to the Village Clerk, as required by the Village Code. Accordingly, plaintiff maintains that any search of the record made by the Village Clerk is incomplete and unreliable. Neither of these arguments is persuasive.

Plaintiff's argument that Thompson, in his capacity as General Foreman, should have observed that the sign or the "stump" is predicated on a theory of constructive notice. This theory [*4]was rejected in Amabile v. City of Buffalo (93 NY2d 471 [1999]), a case in which the plaintiff, similar to the plaintiff here, tripped and fell over "approximately 10 inches of what had once been a stop-sign post protruded from the ground at an angle." (Id at 472). The plaintiff relied upon business records demonstrating that a City worker had been employed solely for the purpose of driving through the City in search of damaged or missing street signs, and had driven past or near the intersection in question many times. Accordingly, plaintiff argued that the City had constructive notice of the defective sidewalk. The Court specifically rejected the argument that "constructive notice" of a sidewalk defect can satisfy a statutory requirement of written notice to a municipality.Not only have numerous cases held that "[c]onstructive notice of a condition is insufficient to satisfy the requirement of prior written notice" (Magee v Town of Brookhaven, 95 AD3d 1179, 1180; see Amabile v City of Buffalo, 93 NY2d at 475-476), but in addition,"actual notice does not obviate the need to comply with the prior written notice requirement." (Granderson v City of White Plains, 29 AD3d 739, 740 [2006]; see also, Chirco v. City of Long Beach, 106 AD3d 941 [2d Dept. 2013]; Hume v. Town of Jerusalem, 114 AD3d 1141 [4th Dept. 2014] ["actual notice of a defect is not an exception to the prior written notice requirement"].)

With respect to the argument that the Village Department of Public Works "takes" complaints regarding sidewalks but does not "log" all such complaints, the Court notes that the Court of Appeals has clearly held that "whereas a written notice of defect is a condition precedent to suit, a written request to any municipal agent other than a statutory designee that a defect be repaired is not." (Gorman v. Town of Huntington, 12 NY3d 275, 279 [2009].) In Gorman, the Court found that a written notice given to the Town Department of Engineering Services (as opposed to either the Town Clerk or the Highway Superintendent who were both listed as statutory designees under the Town Code) was insufficient under the prior written notice law, stating:

"Here, it is undisputed that neither the Town Clerk nor Highway Superintendent received prior written notice of the defective sidewalk. Because the Department of Engineering Services is not a statutory designee, notice to that department is insufficient for purposes of notice under Town Law § 65-a and section 174-3 of the Huntington Town Code. We are unpersuaded that the Department of Engineering Services' practice of recording complaints and repairs warrants a departure from our precedent strictly construing prior written notice provisions. As the entity charged with repairing town sidewalks, it is to be expected that the Department would keep a record of needed repairs and complaints but it cannot be inferred from that conduct that the Town was attempting to circumvent its own prior written notice provision." (Id at 280.)

The Village Code at issue in the present case provides that written notice must be given to the Village Clerk, not the Village Department of Public Works, and thus speculation that the Village Department of Public Works may have received notification of the particular defect at issue is not relevant, as any such notice would have been ineffective under the Code.

In addition, as the Court of Appeals noted in Gorman, "[n]or can a verbal or telephonic communication to a municipal body that is reduced to writing satisfy a prior written notice requirement." (Id at 280; see also, Cenname v. Town of Smithtown, 303 AD2d 351 [2d Dept. 2003] [verbal complaint written down as a telephone message by the Town Parks Department did not satisfy the prior written notice requirement].) In the present case, Thompson was not asked whether he was referring to written or verbal complaints. Because Thompson may have been referring to verbal complaints, since verbal complaints recorded by a municipality do not satisfy the written [*5]notice laws, his testimony in this regard does not assist the plaintiff.

Lastly, as noted above, Thompson was never asked if the notices he received were written or verbal. Thus, the plaintiff has no evidence as to whether the Village Department of Public Works failed to forward written notices of a sidewalk defect to the Village Clerk as required by Village Code § 140-2. In any event, even if there were such evidence, the Village Code's requirement that notices which are received by the Village be forwarded to the Village Clerk does not mean that a written notice can be filed with any official of the Village. Rather, Village Code § 140-1 requires that the notice "actually [be] given" to the Village Clerk. Thus, a written notice forwarded to the Village Clerk would be effective under the Code, but a notice not forwarded by a Village official, such as the Village's General Foreman, would be ineffective. Such a reading gives effect to both sections of the Code, in accord with the requirement that "[e]very part of a statute must be given meaning and effect . . . and the various parts of a statute must be construed so as to harmonize with one another" (Heard v Cuomo, 80 NY2d 684, 689 [1993]), so as to "give the statute a sensible and practical over-all construction, which is consistent with and furthers its scheme and purpose and which harmonizes all its interlocking provisions." (Long v Adirondack Park Agency, 76 NY2d 416, 420 [1990]). A contrary interpretation of the Code would in effect permit service of a written notice on any Village official, thus negating the requirement of the earlier section that the notice be "actually given" to the Village Clerk. Accordingly, based upon the foregoing, it is hereby

ORDERED that the complaint is dismissed.

This constitutes the decision and order of the Court.

Dated:White Plains, New York

November 9, 2015

____________/s/_____________________HON. Terry Jane Ruderman, J.S.C. Footnotes

Footnote 1:A copy of this section is not provided to the Court, but it is readily available on the internet. Under CPLR 4511 (a), the court may take judicial notice without request "of all local laws and county acts." See also, Municipal Home Rule Law § 52 ("Courts shall take judicial notice of all local laws and of rules and regulations adopted pursuant thereto.")