Galvez-Romero v Huntington Union Free Sch. Dist.

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Galvez-Romero v Huntington Union Free Sch. Dist. 2018 NY Slip Op 31832(U) July 31, 2018 Supreme Court, Suffolk County Docket Number: 13-5386 Judge: David T. Reilly 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. [* 1] SlluR I FOR:..l ORDER P.\ DEX ~ o . 13-5386 CAL. No. l 7- l 2700T SUPREME COURT - STATE OF NEW YORK T. A.S. PART 30 - SUFFOLK COUNTY PRES EN T : Hon. DAVID T. REILLY Justice of the Supreme Court MOTION DATE l 1-20-1 7 ADJ. DATE 1-1 7- 18 Mot. Seq. # 001 - M D # 002 - MG ---------------------------------------------------------------)( BETIS MARLENE GALVEZ-ROMERO, Plaintiff: - against - HlT NTINGTO UNION FREE SCI [0 0L DIST RICT and TOWN OF HUNTINGTON, SANDERS, SANDERS, BLOCK VOYCIK, VIENER & GROSSMA!\ Attorney for Plaintiff l 00 HeITicks Road Mineola, New York 11 501 NICHOLAS CIAPETTA HUNTINGTON TOWN ATTORNEY Attorney for Defendant Town of Huntington 100 Main Street Huntington. ew York 117-+3 CONGDON, FLAHERTY, O'CALLAGHAN, REID , DONLON, TRAVIS & FISHLINGER Defendants . Attorney fo r Defendant H untington U FSD 333 Earle O vingto n Blvd., Suite 502 U nio ndale. New York 11 553 ---------------------------------------------------------------)( Upon the fo llo\\'ing papers numbered I to ....12...._ read on these motions for sum marv jud gment : Notice of Motion/ clrder to <;ho\\' Cause and ~upporting papers by defendant Huntington Un ion h t:e School Distric1 1-20 ; Notice of Motion, Order to S hO\\ Cause and supporting papers b) defendant To\1 n of Huntington 25-49 ; Notice of Cross Motion and supporting papers _: Answering Aflidavits and supporting p:i pcrs by plaintiff 2 1-23 ; Replying Affi davits and supporting papers by defendant Huntington Union Free Schoo l District 24 : Other _ _ ; C <lnd 3fte1 lic,11 i11; cou11se l in suppo1 t <'lid opposed to tile ~Jitis. ORDERED that the motion by defe ndant Huntington Union Free choo l District, and the motion by defendant Town o r f Iun ti ng to n, arc co nso lidated fo r pu rposes of this determin ation; and it is further ORDERED tha t the mo tio n by defenda nt Huntingto n Unio n Free School Dis trict (Mot Seq . 00 I ) fo r summary judgment in its favo r is de ni ed; and it is further [* 2] Galvez-Romero v Huntington UFSD Index 'o. 13-05386 Page 2 ORDERED that the motion by defendant Town of Huntington (Mot. Seq. 002) for summary judgment in its favor is granted. This is an action to recover damages for personal injuries allegedly sustained by plaintiff, Betis Marlene Galvez-Romero, on December 13. 2011, when she tripped and fell at the Southdown Prim ary chool located at 125 Browns Road in Huntington. ew York. The premises is owned by defendant Huntington Union Free School District (UFSD). By her bill of particulars, plaintiff alleges that a nail was protruding from the roadway, creating a dangerous condition on the premises, and that defendants were negligent. among other things, in failing to maintain and repair the roadway. UFSD now moves for summary judgment in its favor on the basis that plaintiff could not identi fy what caused her to fall, that it had no notice of the alleged dangerous condition, and that any such condition was trivial. In support of the motion, UFSD submits, inter alia, copies of the pleadings, photographs of the premises, the transcripts of plaintiff's testimony at the General Municipal Law§ 50-h bearing and at her deposition, and the transcripts of the deposition testimony of Yesenia Cortes, George Austin, and Faustino Bonilla. In opposition, plaintiff argues that UFSD has not met its burden of proof, and that there are issues of fact concerning whether the subject walkway was maintained in a reasonably safe condition, and whether defendant had notice of the alleged dangerous condition. In opposition, plaintiff submits, among other things, an expert report prepared by Harold Krogelb, P.E. The Town of Huntington also moves for summary judgment in its favor dismissing the complaint against it. The Town moves on the basis that it lacked prior written notice of the alleged dangerous condition on the premises as mandated by Town Law §65-a and Huntington Town Code § 174-3 before plaintiff was injured. In support, the Town provides. among other things, copies of the pleadings, an affidavit from Richard Scheffler, hi ghway construction coordinator, and an affidavit from Diana Esposito, principal clerk in the Town Clerk's office. It is well sett led that the proponent of a summary judgment motion bears the initial burden of establishing his or her entitlement to judgment, as a matter of law, in his or her favor by offering admissible evidence sufficient to eliminate any material issues of fact from the case (see A l varez v Prospect Hosp.. 68 NY1d 320, 508 NYS2d 923 fl 986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 85 l, 487 NYS2d 316 [ 1985 J: Z11ckerma11 v Ci~l' of New York. 49 NY2d 557. 427 NYS2d 595 fl 980'1). Failure lo make such a showing requires denial of the motion. regardless of the sufficiency of any opposition thereto ( Wi11egrad 1 New Yori< U11iv. ll-Ied. Ctr. , supra). Once the movant has made the requisit~ showing, the burden then shins to the opposing party, requiring him or her to present admissible evidence and facts sufficient to require a trial on any issue or fact (CPLR 3112 (bl: Almrez v Prospect Hosp.. supra: Z uckerman" City of New York , supra). On such a motion, the Court is charged wi th determining whether issues of fact exist while vie\\'ing any evidence in a light most favorable lo the nonmoving party: the Court is not responsible for resolving issues of fact or determining matters of credibility (see Cltimbo v Bolivar, 142 AD3d 944. 37 NYS3d 339 [1d Dept 2016]: Pearson 11 Dix !vfcBride, LLC. 63 AD3d 895, 883 NYS2d 53 [2d Dept 2009]; Kolivas v Kircllof. . 14 AD3d 493, 787 NYS2d 39~ / 2d Dept 2005]). A moti o n for summary judgment f should be denied where the facts arc in dispute, where conflicting inforenccs may be dra\Yn from the 1 [* 3] Galvez-Romero v Huntington LIFSD fndex No. 13-05386 Page 3 evidence. or where there are issues or credibility (see Chimho v Bolivar. supra; Be11etatos v Come1ford, 78 AD3d 730. 911 NYS2d 155 (2d Dept 20 l 0]) . ..A lthough a jury determines whether and to 'vVhat extent a particular duty was breached, it is for the court to first determine whether any duty exists, taking into consideration the reasonable expectations of the parties and society generally" (Cupo v Ka1f1111kel, I AD3d 48, 51, 767 NYS2d 40 [2d Dept 2003), quoting Tagle v Jakob, 97 NY2d 165, 168, 73 7 NYS2d 331 [200 I]). A landowner must maintain his or her property in a reasonably sate condition considering all of the circumstances, such as the likelihood and seriousness of injury to others and the inconvenience ofavoiding the risk (Cupo v Karfunkel, supra; see Basso v Miller, 40 Y2d 233, 241, 386 YS2d 564 (1976]). Whether a dangerous condition exists on real property generally is an issue to be determined by the jury based on the unique facts of each case (DeLaRosa v City of New York, 61AD3d813, 877 NYS2d 439 [2d Dept 2009]; see Trincere v County ofSuffolk, 90 NY2d 976, 977, 655 NYS2d 6 15 [1997]). "[AJn owner of premises cannot be held liable for injuries caused by an allegedly defective condition unless the plaintiff establishes that the owner either created or had actual or constructive notice of the condition" (Bo/Ioli v Waldbaum, In c. , 71AD3d618, 619, 896 NYS2d 400 [2d Dept 20 I OJ, quoting Curiale v S lutrrotts Woods, Iuc., 9 AD3d 473, 474-475, 781 NYS2d 47 [2d Dept 2004]). Constructive notice requires "[the] condition must be vis ible and apparent, and must exist for a s ufficient length of time before the accident to permit the defendant to discover and remedy it" (Bo/Ioli v Waldbaum, Inc., supra at 619, quoting Deveau v CF Galleria at White Plains, LP, I 8 AD3d 695, 695, 769 NYS2d 119 [2d Dept 2005]; see Gordon v A merica11 Museum of N atural History, 67 NY2d 836, 501 NYS2d 646 (1986]). "'A photograph may be used to prove constructive notice of an alleged defect shown in the phot ograph if it was taken reasonably close to the time of the accident and there is testimony that the condition at the time of the accident was substantially as shown in the photographs" (Bo/Ioli v Waldbaum, Inc., supra at 619, quoting L 11ste11ri11g v 98-100 Realty, 1 AD3d 547, 577, 768 NYS2d 20 [2d Dept 2003]). A defendant seeking summary judgment in a trip-and- fol 1 case bears the burden of es ta bl ishing. prima facie. that he or she neither created nor had actual or constructive notice of the alleged defective condition (see Ma11dara110 v PND, LLC, 2018 NY Sl ip Op 00133 [2d Dept 2018]; Jacksou v Jamaica First Parking, LLC, 91 AD3d 602, 936 NYS2d 278 [2d Dept 20 12]). In addition. ··injuries resulting from trivial defects. not constituting a trap or nuisance. O\'Cr \Yhich a p~dcstria n might merely stumble. s tub hi s or her toes. or trip. are not actionab le .. (Grundstrom v Papadopoulos. 117 AD3d 788. 788. 986 NYS2d 167 f2d Dept 20 I·+]; see Tri11cere l ' County of Suffolk. :,upru: Rogers 1• 575 Broad111ay Assoc., LP. 92 AD3d 857. 939 YS2d 517 [2d Dept 2012]: Dela Rosa 1· City of New York. supra). "[T]here is no ·minimal dimension tesf or per se rule that a defect must be of a certain minimum he ight or depth in order to be actionab le .. (Gnmdstrom v Papadopoulos. supra at 788: see Tri11cere v County ofSuffolk. supra). A defendant must provide evidence to show th~ defect is trivial. and the court \\'ill examine all of the facts. including the \\'id th. depth. elevation. itTegularity and appearance of the defect along with the time, place and circumstances of the injury (Gruudstrom 1• Papadopoulos, .rnpm: see Tri11 cere v Co1111~1' ofSu.ffolk. supra: Nagin v K.E.ft1. Enters., Inc., I 11 AD3cl 90 I. 975 NYS2d 753 (2d Dept 20131). [* 4] Galvez-Romero v Huntington UF D lndex No. 13-05386 Page 4 Tiere, the Court finds that UFSD fa iled to establi shed its prima facie entitlement to summary judgment. The evidence submitted. including the deposition testimony and photographs. was insufficient to demonstrate. as a matter of law. that plaintiff could not identify the cause of her fall, that UFSD had no construct ive notice of the alleged dangerous condition. or that any such condition was trivial. Plaintiff clearly testified at both a hearing pursuant to General M unicipal Law § 50-h and at her deposition that a ..piece of metal" caused her to trip and fall. George Austin. operations manager for UFSD, confirmed such a piece of metal was "sticking out of the asphalt'' in the location where plaintiff fell. UFSD failed to establish, prima facie, that it did not have constructive notice of the allegedly dangerous condition, s ince Austin fai led to unequivocally establish when the subject area was inspected in re lation to the time of plainti ffs accident. Reference to his general plowing practices does not establish when, prior to the accident, Austin last inspected the subject location (see Schwartz v Gold Coast R estaurant C01p. , 139 AD3d 696, 3 1NYS3d535 [2d Dept 201 6]; Scltiano v Mijul, file. , 79 AD3d 726, 912NYS2d134 [2d Dept 20 10]). Therefore, a material issue of fact remains regarding UFSD's constructive notice of the alleged dangerous condition (see Lombardo v Kimco Cent. Islip Venture, LLC, 153 AD3d 1340, 60 NYS3d 497 [2d Dept 2017]; Schwartz v Gold Coast Restaurant C01p. , supra; Scltia110 v Mijul, /Jtc. , supra). The photographs submitted by UFSD depict a piece of metal rising above the asphalt in the roadway, and there is no evidence that the condition did not exist for a s ufficient period ohime to allow it to be discovered and remedied (see Bolloli v Waldbaum, In c., supra). UFSD failed to eliminate triable issues of fact regarding the dimensions of the condition, and that the condition was physically insignificant and trivial (see Craig v1 l1eadowbrook Poillte Ho111eow11er's Assn., In c. , 158 AD3d 601, 70 NYS3d 557 [2d Dept 20 18]; Torres v City ofNew York, 109 AD3d 862, 972 N YS2d 582 (2d Dept 2013]; Rogers v 575 Broadway Associates, LP. supra). Accordingly, the motion for summary j udgment by Huntington Union Free School District is den ied. With respect to the motion by the Town of Huntington, ·'[A] municipality that has adopted a ·prior wri tten notice law' cannot be he ld liable for a defect within the scope of the law absent the requisite written notice. unless an exception to the requirement applies" (Forbes v City of New York, 85 AD3 d 1106. 1107. 926 NYS2d 309 [2d Dept 2011 ]). Prior written notice laws must be strictly construed (Lagrasta v Tow1t of Oyster Bay, 88 AD3d 658. 930 NYS2d 254 [2d Dept 1011 ]). "A verbal or telephonic communication to a munic ipal body, even if reduced to writing, cannot satisfy the prior written notice requiremen t., (Tortorici v City of Ne w York , 13 1 AD3 d 959, 960. 16 NYS3d 572 [2d Dept 2015]; see Gorman v Town oj H1111ti11gto11. 12 NY3d 275, 280, 879 NYS2d 379 [20091). Writings prepared by Town employees as a result of verbal complaints do not salisry the prior \\Titten notice requirement (see Wolin v Tow11 oj Nortlt Hempstead. 129 ADJd 833 . 11 NYS3d 617 L2d Dept 2015] ). Prior written repair orders also do not satisfy the statutory requirement (see Lopez ,, Gonzale-;.. 44 /\ 03d I 012. 845 NY '2d 91 [2d Dept 20071: Dalton v Ci(F oj Saratoga Springs. 11 AD3d 899, 784 NYS2d 7021 Jd Dept 2004 ]). Actual o r constructive notice of the defectiYe condition arc both insufficient to satisfy the prior written notice requirement ( Gro11i11ger 1· Village of Jl-Jamaro11eck. 67 AD3d 733 . 888 NYS2d 205 [2d Dept 2009]). However. '·f rlccognized exceptions to the prior written notice req uirement exist where the municipality created the detect or hazard tlu-ough an affirmati \ 'C act of negligence. or where a special use confers a special bencCit upon iC (IUorreale v Town ofSmitlrtowu. 153 ADJd 91 7. 918. 61 , YS3d 269 (2d Dept 20171. quoting ft-Iii/er v Village of E. Hampton. 98 AD3d l 007. I 008. 951 NYS2d 17 1 [2d Dept 2012]). ;\ny affirmati ve negl igence must immediately resu lt in the existence of the dangerous condition [* 5] Galvez-Romero v Huntington UF D [nclex No. 13-05386 Page 5 ( Yarboro ugh 11 City of New York , l 0 NY3d 726. 853 NYS2d 261 [2008]; Trela v City of Long Beacll. 157 !\03cl 747, 69 NYS3d 58 (2d Dept '.20 18] ). The To\,vn has demonstrated that it had no prior written notice of che alleged defective roadway cond ition (see Betz v To wn of H1111ti11gto11 , 106 AD3d l 04 1, 966 NYS2d 4 7 l [2d Dept 20 l 3]). Pursuant to Section I 74-3 of the Huntington Town Code and Section 65-a of the Town Law, the Town will not be liable for a defective or dangerous condition on a roadway unless written notice of the defective condition is actually given to the Town Clerk or Superintendent of Highways. The affidavit of Diana Esposito establishes that a search of the Town C lerk 's records revealed that no written complaints were received by the C lerk's office concerning any dangerous condition on the subject roadway for a period of time dating back at least 5 year prior to the date of plaintiffs accident (see Fisher v Town of Nortll Hampstead, 134 AD3d 670, 20 NYS3d 167 [2d Dept 2015]). The affidavit of Richard Scheffler establishes that a search of the Highway Superintendent's office revealed that no written complaints were received by that office concerning any dangerous conditions on the subject roadway for a period of time dating back at least 5 years prior to the date of plaintiffs accident (see Fish er v Town oj No rt!t H empstead, supra) . Scheffler's atlidavit also establishes that the Town did not create the alleged dangerous condition, as it did not perform any work at the subject location during that time period (see Abreu-L opez v /11 c. Vil. oj Freeport, 142 AD3d 515, 36 YS3d 492 [2d Dept 20161). Plaintiff has not provided any evidence raising a triable issue of fact as to whether the Town had prior wri tten notice or created or exacerbated the alleged dangerous condition prior to her accident (see Mollalu111 v Village oj Port Was fli11gto11 Nortlt , 153 AD2d 881 , 545 NYS2d 60 1 ['.2d Dept 19891). Accordingly, the motion by the Town of Huntington for summary judgment dismissing the comp laint against it is granted. This s hall constitute the decision and Order of the Court. /~ 7 J. S .C. tlON. DAVID T. REILi: FrNA L DISPOS ITIO N 'Oi\'-FINA L DISPOSITIO N

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