Kronenberg v County of Rockland

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Kronenberg v County of Rockland 2018 NY Slip Op 34365(U) December 12, 2018 Supreme Court, Rockland County Docket Number: Index No. 033961/2016 Judge: Sherri L. Eisenpress 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: ROCKLAND COUNTY CLERK 12/12/2018 04:52 PM NYSCEF DOC. NO. 63 INDEX NO. 033961/2016 RECEIVED NYSCEF: 12/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------------x MICHAEL A. KRONENBERG and SHARON KRONENBERG, Plaintiffs, -against- DECISION AND ORDER (Motion #1) Index No.: 033961/2016 COUNTY OF ROCKLAND and TOWN OF RAMAPO Defendants. ------------------------------------------------------------------x Sherri L. Eisenpress, A.J.S.C. The following papers, numbered 1 to 6, were considered in connection with Defendant Town of Ramapo's Notice of Motion for an Order, pursuant to Civil Practice Law and Rules§ 3212, granting summary judgment in its favor and dismissing the action: NUMBERED PAPERS NOTICE OF MOTION/AFFIDAVIT OF CHRISTIAN SAMPSON/AFFIDAVIT OF DENNIS LYNCH ESQ./EXHIBITS "A-D" 1-3 AFFIRMATION IN OPPOSITION/EXHIBITS "A-H" 4 AFFIDAVIT OF DENNIS LYNCH ESQ. IN REPLY/AFFIDAVIT OF THOMAS DEMONT/AFFIDAVIT OF DENNIS SMALL 5 SUR-REPLY LETTER FROM PLAINTIFF'S COUNSEL DATED 9/12/18 6 Upon the foregoing papers, the Court now rules as follows: This action was commenced by Plaintiffs with the filing of the Summons and Complaint on September 21, 2016, alleging that Michael Kronenberg was caused to sustain serious personal injuries on September 13, 2015, at approximately 6:25 a.m., in a one-car accident that occurred on Carlton Road, approximately 100 feet of Whisper Lane, in the Town of Ramapo, Rockland County. Plaintiff alleges that Defendant Town of Ramapo ("Town") 1 failed to maintain the roadway in a safe condition in that there was no "curb" in the area where Plaintiff's vehicle left the roadway and that Defendant "created an oily condition on the The action was previously discontinued against Defendant County of Rockland. 1 1 [* 1] 1 of 5 INDEX NO. 033961/2016 FILED: ROCKLAND COUNTY CLERK 12/12/2018 04:52 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 12/12/2018 t two days earl ier. Issue roadwa y" when it failed to proper ly clean the oil from a prior acciden r 20, 2016. was joined as to the Town by service of a Verified Answe r on Octobe 50-H hearing Plaintif f Michael Kronen berg testified at his General Municipal Law into contac t with before it that there were patche s of oil on the roadwa y which his car came and flipped over. Plaintif f's went out of control , skidde d, crossed the road, hit an emban kment observ ed oil marks on the Wife testifie d that when she arrived at the accide nt scene, she tified police officer mentio n roadwa y. Mr. Kronen berg further testifie d that he heard an uniden d in an oil slick that was at the accide nt scene that an accide nt from a few days earlier resulte scene had no indepe ndent not cleaned up proper ly. The pol ice officer who arrived at the ind icates "Town Highwa y recolle ction of the acciden t. He did not know why the police report was dispatc hed to spread extra speedy dry." had no prior Defend ant moves for summa ry judgm ent on the ground that it curb or oil conditi on on the written notice of any defecti ve conditi on in the nature of a missing that an except ion to the roadwa y. Plaintif f opposes the summa ry judgm ent motion and argues condition when they failed prior written notice statute exists in that the Town "create d the oily earlier ." Plaintif f offers to proper ly clean the oil on the roadwa y from a prior accide nt two days to the acciden t, althoug h no eviden ce. that an accide nt actuall y occurred at that locatio n prior of discove ry. Instead , presum ably, such records would have been deman ded during the course for "Extra Speedy Dry" they argue that Police Officer Small "intima ted" as much when asking that a triable issue of fact in the police report. Based upon this "eviden ce", plaintif fs argue the Town argues that even exists as to whethe r Defend ant created the conditi on. In reply, ent motion , the failure accept ing Plaintif fs' claims as true for purposes of the summa ry judgm neglige nce as a matter of to clean up an oil conditi on does not constit ute an affirma tive act of law. 2 also submits the affidavits of PO David Small who avers that he had no before the knowledge of any notice to the Town concerning any oily substance on the road 2 Defendant 2 [* 2] 2 of 5 FILED: ROCKLAND COUNTY CLERK 12/12/2018 04:52 PM NYSCEF DOC. NO. 63 .· INDEX NO. 033961/2016 RECEIVED NYSCEF: 12/12/2018 The proponent of a summary judgment motion must establish his or her claim or defense sufficient to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. Giuffrida v. Citibank Corp., et al., 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. Lacagnino v. Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 (2d Dept. 2003). However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 711 N.Y.S.2d 131 (2000), citing Alvarez, supra, and Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 508 N.Y.S.2d 923 (1985). Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. Gilbert Frank Corp. v . Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988); Zuckerman v . City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). It is well settled that a municipality which has enacted a prior written notice statute may not be subject to liability for personal injuries unless it either received actual written notice of the dangerous condition, its affirmative act of negligence proximately caused the accident, or where a special use confers a special benefit on the municipality. Estrada v. City of New York, 709 N.Y.S.2d 105, 106, 709 N.Y.S.2d 105 (2d Dept. 2000). Transitory slippery conditions, such as those presented by oil, sand and loose dirt are the types of accident and Thomas Demont, an employee of the Town of Ramapo Highway Department, who states that he responded to the scene after the accident to place some more Speedy Dry but found that no more was needed at that time. Plaintiffs object in a "sur-reply" letter that the Court should not consider these affidavits as they constitute new evidence in a Reply. However, the Court finds that it is unnecessary to even consider these affidavits in deciding the within summary judgment motion. 3 [* 3] 3 of 5 FILED: ROCKLAND COUNTY CLERK 12/12/2018 04:52 PM NYSCEF DOC. NO. 63 INDEX NO. 033961/2016 RECEIVED NYSCEF: 12/12/2018 potentially dangerous conditions for which prior written notice must be given before liability will attach. Id. "Where the allegations stem from physical conditions in streets or sidewalks, a municipality must only submit proof that it did not receive prior written notice pursuant to its statute, which shifts the burden to a plaintiff to establish the availability an exception." Lugo ex rel. Lugo v. County of Essex, 260 A.D.2d 711, 687 N.Y.S.2d 475, 477 (3d Dept. 1999). It is then incumbent upon the plaintiff, in opposing a motion for summary judgment, to establish an exception by producing evidenciary proof in admissible form. Palkovic v. Town of Brookhaven, 166 A.D.2d 566, 567, 560 N.Y.S.2d 850 (2d Dept. 1990). Defendant has met its prima facie burden in that it did not receive prior written notice of a dangerous condition at the accident site. In opposition thereto, it appears that Plaintiffs have abandoned their claim that a dangerous road condition existed in the nature of a missing curb. However, they allege that an exception to the prior written notice requirement exists in that the Town affirmatively created a dangerous condition when it fai led to clean up an oil spill from a prior accident. As an initial matter, the record is completely devoid of any admissible evidence that such an accident even took place in the days preceding the accident. However, even if there was sufficient evidence of same, as a matter of law, the failure to properly or timely clean up an oil condition on the roadway does not constitute affirmative negligence sufficient to invoke the exception to the prior written notice requirement. The presence of oil on the roadway is analogous to the presence of snow or ice. The law is well-established that the failure to remove snow or ice from a public sidewalk or roadway, or to warn of a dangerous condition, are acts of omission, and not affirmative acts of negligence. Rodriquez v. County of Westchester, 138 A.D.3d 713, 29 N.Y.S.3d 418, 421 (2d Dept. 2016); Palkovic v. Town of Brookhaven, 166 A.D.2d 566, 567, 560 N.Y.S.2d 850 (2d Dept. 1990)(mere failure to remove ice and snow from public highway or sidewalk is insufficient to establish the type of affirmative negligence necessary to exempt personal injury case from 4 [* 4] 4 of 5 INDEX NO. 033961/2016 FILED: ROCKLAND COUNTY CLERK 12/12/2018 04:52 PM NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 12/12/2018 prior written notice requirements.); Camera v. Barrett, 144 A.D.2d 515, 534 N.Y.S.2d 395 (2d Dept. 1988). Likewise, the failure to expeditiously repair or remedy a condition of this nature is not affirmative behavior necessary to establish that the Town created the defective condition. See Silva v. City of New York, 17 A.D.3d 566, 793 N.Y.S.2d 478 {2d Dept. 2005). Thus, assuming Plaintiffs submitted adequate proof of a prior oil spill which was not properly cleaned up or remedied by the Town, or which was not addressed in a timely manner (which they did not), such acts are considered passive and are insufficient to invoke the affirmative negligence exception to the prior written notice rule. As such, this action requires dismissal. Accordingly, it is hereby ORDERED the Notice of Motion filed by the Town of Ramapo for summary judgment and dismissal of the Complaint {Motion #1) is GRANTED and the Complaint is dismissed. The foregoing constitutes the Decision and Order of this Court on Motion #1. Dated: New City, New York December 12, 2018 HON. SHERJ! L. EISENPRESS Acting Justice f' the Supreme Court TO: All Parties via -NYSCEF- 5 [* 5] 5 of 5

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