Mayer v Roc-Kisco Assoc. LLC
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Mayer v Roc-Kisco Assoc. LLC 2017 NY Slip Op 33490(U) May 24, 2017 Supreme Court, Westchester County Docket Number: Index No. 59963/2015 Judge: Lawrence H. Ecker 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 05/25/2017 02:03 PM NYSCEF DOC. NO. 42 INDEX NO. 59963/2015 RECEIVED NYSCEF: 05/25/2017 To commence commence the the statutory statutory time for for appeals appeals as of of right right time (CPLR 5513[a1), 5513[a]), you you are (CPLR advised to to serve serve a copy copy advised of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY ---------------X -----------------------------------------------------------------------X DOLORES MAYER, MAYER, DOLORES INDEX NO. 59963/2015 59963/2015 . INDEX DECISION/ORDER DECISION/ORDER Plaintiff, Plaintiff, -against-against- Mot. Seq. 1 Submission Submission Date: Date: 4/12/17 4/12/17 ROC-KISCO ROC-KISCO ASSOCIATES, ASSOCIATES, LLC and VILLAGE!TOWN VILLAGEfTOWN OF MOUNT MOUNT KISCO, KISCO, Defendants. Defendants. -------------------------'-------X -------------------------------------------------------------~---------X ECKER, ECKER, J. The following following papers papers numbered numbered 1 through through 16 were were considered considered on the motion motion of of The VILLAGEfTOWN OF MOUNT MOUNT KISCO KISCO ("the Village!Town"), VillagefTown"), made made pursuant pursuant to CPLR CPLR 3212, 3212, VILLAGE!TOWN for an order order granting granting summary summary judgment dismissing the the complaint complaint brought brought by for judgment and d·ismissing DOLORES MA MAYER ("plaintiff') and all cross-claims cross-claims asserted by ROG-KISCO ROC-KISCO YER ("plaintiff') asserted DOLORES ASSOCIATES, LLC ("Roe-Kisco"): ("Roc-Kisco"): ASSOCIATES, NUMBERED NUMBERED PAPERS PAPERS Notice of of Motion, Motion, Affirmation, Affirmation, Affidavit, Affidavit, Exhibits Exhibits A-G, A-G, Notice Memorandum Memorandum of of Law Affirmation Affirmation in Opposition Opposition [Plaintiff], [Plaintiff], Exhibits Exhibits A-B A-S11 Affirmation Affirmation in Opposition Opposition [Roe-Kisco] [Roc-Kisco] Reply Affirmation Affirmation Reply 11 1 - 11 12 - 14 15 16 Upon Upon the foregoing foregoing papers, papers, the the court court determines determines as follows: follows: Plaintiff Plaintiff alleges alleges she she sustained sustained physical physical injuries injuries when when she she tripped tripped and fell on May May 28, 2014 while while traversing traversing the the sidewalk sidewalk in front front of of premises premises known known as 359 359 East East Main Street, Street, Mt. 2014 ·.1 1 Court Court rules rules direct direct that that plaintiff plaintiff use external, external, numbered numbered exhibit exhibit tabs. tabs. -1- [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 05/25/2017 02:03 PM NYSCEF DOC. NO. 42 INDEX NO. 59963/2015 RECEIVED NYSCEF: 05/25/2017 New York York owned owned by Roe-Kisco, Roc-Kisco, after after she had visited visited her her dentist, dentist, who who maintained maintained Kisco, New office at that that location. location. The The issues issues raised raised are the the location location of of the the height height differential differential which which an office plaintiff testified testified in her her deposition deposition caused caused her to trip, and whether whether that that height height differential differential plaintiff part of the sidewalk sidewalk owned owned and controlled controlled by the the Village/Town VillagelTown or Roe-Kisco. Roc-Kisco. was on the part disputed by the the parties parties that that the the Village/Town VillagelTown did not receive receive prior prior written written It is not disputed notice of of the alleged alleged defect, defect, as required required pursuant pursuant to Village Village Law§ Law S 6-628 6-628 and Village Village Code Code notice 7. Rather, § S 93-4 93-47. Rather, plaintiff plaintiff relies relies upon upon one one of of the two exceptions exceptions to the the prior prior written written notice notice namely that that the the defect defect in the sidewalk sidewalk was was caused caused by the the Village/Town's VillagelTown's repair repair of of law, namely same. Plaintiff Plaintiff contends contends the the height height differential differential between between that that part part of of the the sidewalk sidewalk that that same. appears to be owned owned and controlled controlled by Roe-Kisco Roc-Kisco was was uneven uneven where where it meets meets with with that that appears the sidewalk sidewalk that that was was owned owned and maintained maintained by the the Village/Town. VillagelTown. The The part of the TownNillage's foreman, foreman, Giuseppe Giuseppe Luppino, Luppino, in his deposition, deposition, testified testified the the records records show show TownNillage's sidewalk was was last worked worked on by the Village/Town VillagelTown in 1990, 1990, and that that the the location location where where the sidewalk plaintiff testified testified she she fell is not not on the Village/Town VillagelTown portion portion of of the the sidewalk. sidewalk. Joe Joe Pizzimenti Pizzimenti plaintiff testified in his deposition deposition that that he was was employed employed by C-Clean C-Clean Corporation, Corporation, which which does does testified property maintenance maintenance for for the managing managing agent agent for for Roe-Kisco, Roc-Kisco, and that that in 2010, 2010, blacktop blacktop property work was done done by Arrow Arrow Blacktop, Blacktop, as shown shown in the the photograph photograph identified identified by plaintiff plaintiff as the the work was location of of her her fall [Village/Town [VillagelTown Ex. C]. C]' location "Where, as here, a municipality municipality has enacted enacted a prior prior written written notice notice statute, statute, it may may not "Where, subjected to liability liability for for injuries injuries caused caused by an improperly improperly maintained maintained street street or sidewalk sidewalk be subjected unless it has received received written written notice notice of of the the defect, defect, or an exception exception to the the written written notice notice unless applies." Abreu-Lopez Incorporated Vil. ViI. of of Freeport, Freeport, 142 AD3d AD 3d 515 515 [2d Dept Dept 2016]. 2016]. Abreu-Lopez v Incorporated applies." "Recognized exceptions exceptions to the the prior prior written written notice notice requirement requirement exist exist where where the the municipality municipality "Recognized created the defect defect or hazard hazard through through an affirmative affirmative act act of of negligence, negligence, or where where a special special created confers a special special benefit benefit upon upon it." Yarborough Yarborough v City City of of New New York, 10 NY3d NY3d 726, 728 728 use confers [2008]; Lopez Lopez v Calderone Calderone v Lang-Viscogliosi, Lang-Viscogliosi, 127 AD3d AD3d 1143, 1143, 1145 1145 [2d Dept Dept 2015] 2015] [2008]; Given there there is no issue issue of of the the lack of of prior prior written written notice, notice, and no argument argument that that the Given VillagelTown used used its portion portion of of the public public sidewalk sidewalk for for a "special "special use" use" (which (which is the the other other Village/Town exception to the prior prior written written notice notice rule (See (See Schleif Schleif v City City of of New New York, 60 AD3d AD 3d 926 926 [2d exception Dept 20091), 2009]), the only only manner manner in which which plaintiff, plaintiff, or Roe-Kisco, Roc-Kisco, may may affix affix liability liability to the Dept VillagelTown is if it can be shown shown that that the the Village/Town VillagelTown caused caused the the differential differential in the the Village/Town sidewalk due due to its affirmative affirmative act of of negligence negligence in its repair repair of of same. same. Here, Here, the the evidence, evidence, sidewalk rebutted, is that that the the Village/Town VillagelTown performed performed the last repair repair to the the sidewalk sidewalk in 1990. 1990. As not rebutted, such, this repair repair is too too remote remote in time time to the the date date of of plaintiff's plaintiff's trip and fall. such, The affirmative affirmative act act exception, exception, the the only only exception exception at issue issue here, "is limited limited to work work The [municipality] that that immediately immediately results results in the existence by the [municipality] existence of of a dangerous dangerous condition" condition" Yarborough v City City of of New New York, 19 NY3d 726, 728 [2008], [2008], quoting Oboler v City City of Yarborough quoting Oboler of New New York, 8 NY3d 888, 889 [2007]; [2007]; Beiner v Village of Scarsdale, 149 AD3d 1051 [2d Dept Beiner Village of Scarsdale, AD3d Dept 2017]; Loghry Loghry v Village Village of of Scarsdale, Scarsdale, 149 AD3d Dept 2017]. AD3d 714 [2d Dept 2017]. 2017]; -2-2- [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 05/25/2017 02:03 PM NYSCEF DOC. NO. 42 INDEX NO. 59963/2015 RECEIVED NYSCEF: 05/25/2017 st Dept approval cited with approval 2005], cited InBie/ecki City of of New [1 sl Dept 2005], AD3d 301, 302 [1 New York, 14 AD3d Bielecki v City In negligence affirmative the that stated in Obo/er Oboler v City City of Court stated that the affirmative negligence supra, the Court New York, supra, of New York City the New that case exception to the notice requirement requirement (in that case the New York City Pothole Pothole Law) is to be the notice exception of a existence the in results limited to work the that "(I)mmediately results the existence of "(l)mmediately that City the by work limited negligence affirmative the extend the affirmative negligence were to extend dangerous stated, "If we were Court stated, the Court condition. As the dangerous condition. that a dangerous exception to cases cases like this alleged that dangerous condition condition developed developed where it is alleged this one, where exception requirement notice exception the repair, over time from an allegedly negligent municipal repair, the exception notice requirement municipal negligent allegedly over time the Pothole of the purpose of the purpose would Pothole defeating the thereby defeating itself, thereby requirement itself, the requirement swallow up the would swallow likewise applicable Law." Bielecki, Bielecki, supra That reasoning reasoning is likewise applicable here. Yarborough Yarborough v City City supra at 302. That Law." Walker 2017]; Dept [2d 919 AD3d 147 of New York, supra; Lewak v Town of Hempstead, AD3d 919 Dept 2017]; Walker of Hempstead, supra; Lewak of New 2017]. County of Dept 2017]. AD3d 806 [2d Dept Nassau, 147 AD3d of Nassau, v County specifically the parties of the contentions of The parties not not specifically additional contentions the additional considered the court has considered The court addressed by not addressed was not party was either party addressed requested by either relief requested any relief extent any the extent herein. To the addressed herein. hereby it Accordingly, the court, it is hereby denied. Accordingly, is hereby denied. hereby the ORDERED MOUNT KISCO, KISCO, VILLAGE/TOWN OF MOUNT defendant VILLAGEfTOWN of defendant motion of the motion that the ORDERED that and complaint, the of dismissal and made pursuant to CPLR 3212, for summary judgment dismissal the complaint, judgment summary for made pursuant CPLR 3212, further is it against it; and dismissed, as against all cross-claims, further complaint is dismissed, the complaint granted, and the cross-claims, is granted, the Settlement shall appear ORDERED that remaining parties parties shall appear at the Settlement Conference Conference the remaining that the ORDERED 9:15 a.m. 27, 2017, at 9:15 Part of Court, Room Room 1600, on June June 27,2017, the Court, of the Part The foregoing constitutes the Decision/Order of the the court. court. the Decision/Order foregoing constitutes The York Dated: White P~ajns, New New York White P~ajns, Dated: 2017 May')..,, May).. 1,2017 T;1/~ ENENT;/=:~ J.S.C. LAWRENCE H. ECKER, ECKER, J.S.C. HON. LAWRENCE -3-3- [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 05/25/2017 02:03 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 05/25/2017 Appearances Appearances Michael Fuller Fuller Sirignano, Sirignano, Esq. Michael Attorney for for Plaintiff Plaintiff Attorney NYSCEF Via NYSCEF Thomas M. Bona, Bona, P.C. Thomas Attorneys for for Defendant Defendant Roe-Kisco Roc-Kisco Associates, Associates, LLC Attorneys Via NYSCEF NYSCEF Via Henderson Henderson & Brennan Brennan Attorneys Attorneys for for Defendant Defendant Village/Town VillagelTown of of Mt. Kisco Kisco Via NYSCEF NYSCEF Via -4-4- [* 4] INDEX NO. 59963/2015 4 of 4
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