Montoya v Village/Town of Mount Kisco

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Montoya v Village/Town of Mount Kisco 2017 NY Slip Op 33441(U) July 21, 2017 Supreme Court, Westchester County Docket Number: Index No. 67304/16 Judge: William J. Giacomo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 07/24/2017 10:35 AM NYSCEF DOC. NO. 47 INDEX NO. 67304/2016 RECEIVED NYSCEF: 07/24/2017 To commence commence the statutory time period for appeals appeals as of right (CPLR 5513 [all, you are (CPLR 5513 [a]), are advised serve a copy of this order, order, with to serve parties. notice of entry, upon all parties. SUPREME COURT COURT OF THE STATE OF NEW NEW YORK SUPREME THE. STATE YORK COUNTY WESTCHESTER COUNTY OF WESTCHESTER PRESENT: HON. HON. WILLIAM WILLIAM J. GIACOMO, GIACOMO, J.S.C. PRESENT: - - - - - - - - - - - - - - - - - - - - - - ---'- - - - - - - - - - - - - - - - - - X MARTHA MONTOYA MONTOYA and ALONSO MONTOYA, MARTHA ALONSO MONTOYA, Plaintiff, Plaintiff, - againstagainst- Index 67304/16 Index No. 67304/16 VILLAGEITOWN OF MOUNT MOUNT KISCO KISCO and THE THE UNITED UNITED VILLAGE/TOWN METHODIST CHURCH CHURCH OF MOUNT MOUNT KISCO, KISCO, METHODIST DECISION & ORDER ORDER DECISION Defendants. Defendants. ------ - - - - - ------ - - - - - -- - --- - ------------------ - - - - - - - - - - - - - - - - - ----- - - - - -- - x X action to recover recover damages damages for pe"rsonal injuries, injuries, etc., the defendants In this action for pe'rsonal defendants ViliagelTown of Mount Mount Kisco Kisco and The United Methodist Methodist Church Church of Mount Kisco Kisco Village/Town The United of Mount separately move for for summary complaint pursuant pursuant to CPLR CPLR separately move summary judgment judgment dismissing dismissing the complaint 3212. Papers Considered Considered Papers 1. 2. 3. 4. 5. 6. Notice of Motion/Affirmation of Amanda Esq.lExhibits A-D; Notice of Motion/Affirmation Amanda M. Zefi, Esq./Exhibits Affirmation Gerard A. Falco, Esq. in Opposition/Exhibits Opposition/Exhibits A-D; Affirmation of Gerard A-D; Reply Affirmation Reply Affirmation Amanda Amanda M. Zefi, Esq; Notice of Motion/Affirmation of Michael Michael Driscoll, Driscoll, Esq./Exhibits Esq.lExhibits A-L; Notice of Motion/Affirmation A-L; Affirmation Gerard A. Falco, Falco, Esq. in Opposition/Exhibits Opposition/Exhibits A-C; Affirmation of Gerard A-C; Reply Affirmation of Christopher Walsh, Esq. Reply Affirmation Christopher J. Walsh, Factual and Procedural Procedural Background Background Factual Martha Montoya Montoya tripped sidewalk adjacent adjacent to On April April 29, 2016, 2016, Martha tripped and fell on the sidewalk the premises premises located located at 31 31 Smith Smith Avenue ViliagelTown of Mount Kisco, owned owned by Avenue in the the Village/Town of Mount the United Methodist Church of Mount Kisco. the United Methodist Church of Mount Village's fYlotion Motion for Summary Summary Judgment The Village's Judgment The VillagelTown Mount Kisco Kisco ("Village") ("Village") moves moves for summary The Village/Town of Mount summary judgment judgment dismissing complaint insofar insofar as asserted asserted against against it on the grounds that that it did not dismissing the complaint the grounds [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 07/24/2017 10:35 AM NYSCEF DOC. NO. 47 INDEX NO. 67304/2016 RECEIVED NYSCEF: 07/24/2017 Montoya v. Village/Town of Mount Kisco, Index Index No. 67304/2016 Montoya VilIage/TownofMount 67304/2016 receive prior prior written notice of defect or dangerous dangerous condition condition on the sidewalk. sidewalk. The receive written notice of any defect Village further argues argues that that it did not create create any defect defect in the area area of the accident. accident. Village further In support, Village submits affidavit of of Edward support, the Village submits an affidavit Edward W. Brancati, Brancati, Village Village Manager. As m_anager, manager, Mr. Brancati's Brancati's duties include maintaining maintaining all prior prior written duties include written Manager. complaints sidewalks and notices complaints as to roadways roadways and sidewalks notices of claim. claim. All such notices notices are kept kept in a binder binder in Mr. Brancati's Brancati's office. Mr. Brancati attests that he conducted a search of office. Brancati attests that conducted search of all prior written notices and notices notices of claim claim pertaining pertaining to the accident accident location location dating back prior written notices dating back to the year Brancati, the Village never received received prior prior written Village has never written year 2000. 2000. According According to Mr. Brancati, notice notice or a notice notice of claim regarding regarding the location location where where plaintiff's plaintiff's accident accident occurred. occurred. Mr. Brancati further states that perform any any work work in the area. Brancati further states that the Village Village did not perform also submits Markus, its Deputy Deputy Mayor Mayor and a The Village Village also submits an affidavit affidavit of Anthony Anthony Markus, member member of Board of Markus states states that that all members· members of the Board Board of of the Board of Trustees. Trustees. Mr. Markus Trustees transfer prior written notices or notices notices of claim to Mr. Brancati Brancati for Trustees transfer all prior written notices of claim recordkeeping. Mr. Markus attests that no member of the Board Trustees received record keeping. Markus attests that member the Board of Trustees received prior written notice of alleged defect area where plaintiff's accident accident occurred. occurred. prior written notice of any alleged defect in the area where plaintiffs Joseph Luppino, The further submits submits an affidavit The Village Village further affidavit of Joseph Luppino, the the Highway Highway Foreman. His duties include inspecting inspecting all roads roads located located in the Village the jurisdiction jurisdiction of of the Village Foreman. duties include roads and sidewalks sidewalks are properly properly maintained. maintained. Mr. Luppino Luppino attests to enSure ensure that that all roads attests that that spray paint flags with white spray paint, not yellow Village is to spray the policy policy of the the Village paint sidewalk sidewalk flags white spray yellow spray paint. In addition, addition, he states Village did not perform perform any spray states that that the Village any work work on, near, or around the area area where plaintiff's accident accident occurred. occurred. around where plaintiffs i In opposition, opposition, plaintiffs plaintiffs argue argue that Village failed demonstrate entitlement entitlement to ln that the Village failed to demonstrate summary judgment. Plaintiffs submit submit photographs photographs depicting depicting a sidewalk sidewalk flag that that is summary judgment. Plaintiffs highlighted with yellow spray spray paint. Plaintiffs Plaintiffs also also attach attach each each defendant's defendant's response response to highlighted with yellow of the sidewalk. demands for discovery, which demands for discovery, which include include photographs photographs of sidewalk. These These photographs photographs reveal yellow and blue spray other portions the sidewalk sidewalk in question. reveal both yellow spray paint paint on other portions of the question. Plaintiffs contend contend that photographs exhibiting painted yellow yellow line line "clearly "clearly suggests suggests Plaintiffs that the photographs exhibiting a painted that only have have been been pained pained by or on behalf behalf of adjacent that the line could only of the the Village Village or the adjacent landowner since since there there are no other known parties parties in interest". interest". landowner other known United Methodist Methodist Church's Church's Motion Motion for for Summary Summary Judgment The United Judgment The United United Methodist Methodist Church Church moves moves for summary dismissing the The summary judgment judgment dismissing complaint on the grounds grounds that that it did not have have a duty maintain the sidewalk sidewalk and it did duty to maintain complaint create the defective benefit of the sidewalk. not create defective condition condition or confer confer a special special benefit the sidewalk. United Methodist Methodist Church Church submits submits an affidavit pastor, Parker Parker In support, support, the United affidavit of of its pastor, well as Art Covey and Andre Ferrara. All three attest that church did not H. Prout, as well Art Covey Andre Ferrara. three attest that the church spray paint paint the make any repairs repairs on the sidewalk, sidewalk, as it was was the Village's spray the sidewalk sidewalk or make the Village's responsibility to maintain. maintain and repair repair the sidewalk. Pursuant Pursuant to TownNiliage Code responsibility the sidewalk. TownNillage Code section 93-3, repair and reconstruction reconstruction of the responsibility of the section 93-3, repair the sidewalk sidewalk is the the responsibility 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 07/24/2017 10:35 AM NYSCEF DOC. NO. 47 INDEX NO. 67304/2016 RECEIVED NYSCEF: 07/24/2017 Montoya v. Village/Town Village/Town of of Mount 67304/2016 Montoya Mount Kisco, Index Index No. 67304/2016 TownNiliage TownNillage and that the code does not impose tort liability on the owners of any abutting property. plaintiff's accident accident but did observe Pastor Prout attests that he did not witness witness plaintiff's plaintiff plaintiff after the accident accident allegedly occurred. Upon a review of the church's church's billing documents, the church never repaired or replaced the adjacent records and relevant documents, adjacent sidewalk for ten years prior to the accident. Mr. Mr. Covey attests that he has been the Sexton of the church since 1998, except for the period between 2010 and 2011. His duties included performing performing all maintenance maintenance on the church and the grounds. Mr. Covey states that he never spray-painted spray-painted a yellow construction on the sidewalk. He line on the sidewalk sidewalk and did not perform any repairs or construction maintenance or construction construction on the sidewalk never directed anyone to perform repairs, maintenance surrounding area. or the surrounding Mr. Mr. Ferrara states.that states that he was the Sexton of the church for 2010 and 2011, in the absence of Mr. Covey. His duties included performing performing all maintenance .church maintenance on the .church absence and the grounds. Mr. Ferrara states that he never spray-painted spray-painted a yellow yellow line on the sidewalk did. not perform any repairs or construction construction on the sidewalk. He also never sidewalk and did.not maintenance or construction construction on the sidewalk directed anyone to perform repairs, maintenance sidewalk or the surrounding area. surrounding ·. Methodist Church's In opposition, plaintiffs argue that the United Methodist Church's motion is premature. Plaintiffs argue that the paint placed over the defect defect in the sidewalk sidewalk constitutes a repair which the church "is liable for if they took such action". constitutes Plaintiffs submit depicting the sidewalk, a copy of the church's submit photographs photographs depicting discovery demands, demands, and a copy of the church's church's website website listing its staff. response to discovery someone with a longer ·affiliation 'affiliation with the church, other than the Plaintiffs claim that someone pastor or sextons would be better suited to comment on the sidewalk. pastor Discussion summary judgment evidentiary proof A party seeking summary judgment has the burden burden of tendering tendering evidentiary in admissible admissible form to demonstrate demonstrate the absence absence of material issues of fact (see Alvarez in Alvarez v. v. ProspeCt Hosp., Hosp., 68 NY2d 320, 324 [1986]). Where the moving party establishes Prospect establishes prima facie entftlement entitlement to judgment judgment as a matter of law, the burden then shifts to the opposing demonstrate that genuine genuine issues of fact exist to preclude summary summary judgment party to demonstrate judgment City of YOrk, 49 NY2d (Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman Zuckerman v City of New New York, 557, 562-563 [1980]). I.I. The Summary Judgment The Town's Motion for Summary municipality has enactedenacted a prior written "Where, as here, a municipality improperly not be subjected subjected to liability for injuries caused by an improperly sidewalk unless it has received written notice of the defect, or written requirement applies" (Abreu-Lopez (Abreu-Lopez v Incorporated written notice requirement /nco_rporated 3 [* 3] 3 of 5 notice statute, it may maintained street or maintained exception to the an exception Vii. of of Freeport, Freeport, 142 Vil. FILED: WESTCHESTER COUNTY CLERK 07/24/2017 10:35 AM NYSCEF DOC. NO. 47 INDEX NO. 67304/2016 RECEIVED NYSCEF: 07/24/2017 Montoya v. Village/Town Village/Town of of Mount Mount Kisco, Index Index No. 67304/2016 67304/2016 Montoya AD3d 515, 516 (2d Dept 2016) citing citing Cimino Cimino v County County of of Nassau, Nassau, ·105 105 AD3d 883, 884 "Exceptions to the prior written notice requirement requirement have been [2d Dept 2013]). "Exceptions municipality created the defect defect or hazard through an l:ilffirmative affirmative recognized where the municipality (Braver v act of negligence, or where a special use confers a special benefit upon it" (Braver Village of of Cedarhurst, Cedarhurst, 94 AD3d AD 3d 933, 934 [2d Dept 2012); 2012]; Cimino Cimino v County County of of Nassau, Nassau, Village AD 3d at 884). 105 AD3d Here, the Village established judgment as a matter established its prima facie entitlement entitlement to judgment of law by submitting submitting sufficient sufficient evidence evidence to demonstrate demonstrate that it did not have prior written notice of the alleged sidewalk sidewalk defect or create the condition condition through an affirmative affirmative acf act of negligence (see VillagefTown ViliagefTown of Mount Mount Kisco Code § S 93-47; see see also also Monopoli Monopoli v negligence County of of Nassau, Nassau, 292 AD2d 356,357 [2d Dept 2003) 2003] [holding that defendant defendant made a County entitlement to summary summary judgment submitting an affidavit to judgment by submitting prime facie showing of its entitlement the effect that the County had no prior written notice of the existence existence of a defect defect in the sidewalk]). opposition, plaintiff plaintiff failed to raise a triable issue of fact.. fact. Plaintiff's argument In opposition, Plaintiff's argument that the yellow spray paint indicates indicates that the TownNillage TownNiliage may have conducted conducted a repair or had notice of the defect defect is conclusory conclusory and speculative speculative (see Patti Patti v Town of of N. or· Hempstead, 23 AD3d 362, 363 [2d Dept 2005] [holding that the· the. plaintiff's plaintiff's speculative speculative Hempstead, and unsupported unsupported contention contention that one of the defendants defendants must have repaired the sidewalk accident occurred and therefore therefore created the allegedly allegedly dangerous dangerous condition where the accident insufficient to raise a triable issue of fact]). The Village demo,:1strated demonstrated that it uses was insufficient paint, not yello_w yellow spray paint, to make markings on sidewalks. sidewalks. Further, even white spray paint; constructive notice of the allegedly allegedly defective defective condition, that if the Village had actual or constructive statutory requirement requirement of prior written notice" (see (see Wolin v Town of of "does not override the statutory N. Hempstead, Hempstead, 129 AD3d AD 3d 833, 836 [2d Dept 2015]). II. Judgment The United Methodist Church's Motion for Summary Judgment "Generally, liability for injuries sustained sustained as a result of dangerous dangerous and defective defective "Generally, conditions conditions on public sidewalks sidewalks is placed on the municipality municipality and not the abutting landowner" (Biondi (Biondi v County County of of Nassau, Nassau, 49 AD3d 580 [2d Dept 2008]). Here, the United Methodist judgment as a Methodist Church demonstrate demonstrate entitlement entitlement to· to judgment Pursuant to the TownNillage TownNiliage of Mount Kisco Code § S 93-3, it is the matter of law. Pursuant Village's responsibility responsibility to repair any defects defects in the sidewalk sidewalk (see VillagefTown ViliagefTown of Mount Village's Code S 93-3). In opposition, opposition, plaintiff plaintiff failed to raise a triable issue of fact. Although Although Kisco Code§ exceptions to the general general rule do exist, they are not applicable applicable to the present present case as exceptions there is no evidence evidence that the ~hurch church repaired the sidewalk, caused a defect defect to the sidewalk from special use, or breach a specific ordinance ordinance or·statute or statute (Biondi, (Biondi, 49 AD3d at 580-81). Plaintiffs' argument that spray-painting the sidewalk constitutes argument spray-painting sidewalk constitutes a repair is without any merit. The affidavits of individuals individuals working at the church reveal that the without spray-paint the sidewalk. Inasmuch as the United Methodist Methodist Church did church did not spray-paint summary judgment not have a duty to repair the sidewalk, the motion for summary judgment is granted. 4 [* 4] 4 of 5 _; I I I FILED: WESTCHESTER COUNTY CLERK 07/24/2017 10:35 AM NYSCEF DOC. NO. 47 INDEX NO. 67304/2016 RECEIVED NYSCEF: 07/24/2017 Montoya v. Village/Town Mount Kisco, Index Index No. 67304/2016 67304/2016 Montoya Village/Town of of Mount Conclusion Conclusion Based foregoing, the motion Villagerrown of Mount Based upon upon the foregoing, motion of the defendant defendant Villagerrown Mount Kisco for summary judgment dismissing dismissing the complaint complaint is GRANTED GRANTED (motion sequence summary judgment (motion sequence motion of the defendant defendant The United Methodist Methodist Church Mount Kisco Kisco for #1); and the m~tion The United Church of Mount . summary judgment dismissing the complaint complaint is GRANTED GRANTED (motion summary judgment dismissing the (motion sequence sequence #2); and complaint is dismissed entirety. the complaint dismissed in its entirety. Dated: Dated: White Plains, New New York White Plains, York July 21, 2017 July 21,2017 ALPHABETICAL MASTER MASTER UST LIST -WESTCHESTER/Montoya - WESTCHESTER/Montoya v. Village Village of Mt. Kisco H: ALPHABETICAL 5 [* 5] 5 of 5

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