Greene v Village of Lake George

[*1] Greene v Village of Lake George 2018 NY Slip Op 50367(U) Decided on March 9, 2018 Supreme Court, Warren County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2018
Supreme Court, Warren County

Sandra M. Greene, Plaintiff,

against

Village of Lake George and TOWN OF LAKE GEORGE, Defendants.



64613



Hanson Law Firm, P.C., Schenectady (Kristie H. Hanson of counsel), for plaintiff.

FitzGerald Morris Baker Firth P.C., Glens Falls (Joshua D. Lindy of counsel), for defendants.
Robert J. Muller, J.

This pre-answer motion pursuant to CPLR 3211 seeks dismissal of the complaint for failing to comply with General Municipal Law § 50 by not serving a notice of claim upon defendant Town of Lake George (hereinafter the Town). Additionally, defendant Village of Lake George (hereinafter the Village) seeks dismissal of the complaint upon a failure to plead and allege compliance with General Municipal Law § 50-i (1) (b) and Village Law § 6-628. Lastly, the Village seeks dismissal based upon the absence of any prior written notice of the claimed defect and Village of Lake George Local Law (hereinafter Village Local Law) § 186-12, which requires such notice. The Village does not dispute having received the notice of claim.

Plaintiff alleges in the proposed amended complaint that on August 4, 2016 she tripped and fell on a Village street, suffered injuries, and further alleges that the Village was negligent in creating an unpainted, unmarked speed bump or water barrier in front of 67 Montcalm Street in the Village. On October 31, 2016 she served a notice of claim on the Village followed by a summons and complaint on November 21, 2017.

The Town was served with the summons and complaint on November 22, 2017. Whether the Town was also served with a notice of claim is seemingly in dispute but for reasons hereinafter observed the Court declines to address that controversy.

Motion to Dismiss

Turning first to the motion to dismiss, the Court recognizes there are indeed occasions when a plaintiff's failure to plead and prove compliance with the prior written notice provisions can be fatal to the negligence claim in a complaint (see Merchant v Town of Halfmoon, 194 AD2d 1031, 1032 [1993]; Horton v City of Schenectady, 177 AD2d 823, 824 [1991]).

Here the motion is supported by the Village's Clerk-Treasurer's affidavit in which she describes the responsibilities of maintaining any written notices of defects received by the Village in keeping with Village Local Law § 186-12 and affirms the absence of any prior written notice concerning any defects in front of the property located 67 Montcalm Street, which is the described situs of plaintiff's misadventure.

The Village also offers the affidavit of its Public Works Superintendent whose duties include supervising any road work and, or, repairs to the streets located in the Village which the Village has a duty to maintain — duties which include maintaining files regarding repair and maintenance work performed by his department. This affiant, relying upon the allegation that there is an "unpainted, unmarked speed bump/water barrier area in front of the property located at 67 Montcalm Street," states that no such configuration exists at that location. It is initially observed that, although plaintiff's opposition to the motion to dismiss does not address the Public Works Superintendent's evidence, at present the Court considers itself occupied only with a CPLR 3211 motion to dismiss rather than a CPLR 3212 motion for summary judgment. With no indication in the submissions that either party has intended to treat this aspect of the motion as one for summary judgment, the question as to "whether the parties charted a summary judgment course by laying bare their proof " leads to the more logical conclusion that they have not (Matter of Dashnaw v Town of Peru, 111 AD3d 1222, 1224 [2013]; see Elhannon, LLC v Brenda J. DeLuca Trust, 108 AD3d 911, 911-912 [2013]; Pilatich v Town of New Baltimore, 100 AD3d 1248, 1250 [2012]; Yule v New York Chiropractic Coll., 43 AD3d 540, 541 [2007]). This affidavit is irrelevant for the purposes of this CPLR 3211 motion.

Concerning the written notice provisions at issue, Village Law § 6-628 provides that

"No civil action shall be maintained against the village for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed or for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk, street, highway, bridge or culvert unless written notice of the defective, unsafe, dangerous or obstructed condition or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or to cause the snow or ice to be removed, or the place otherwise made reasonably safe."

Village Local Law § 186-12 substantially parallels this language including the repeated qualification that notice "was actually given to the Village Clerk."

Plaintiff's opposition does not offer anything to suggest that written notice was ever actually given to the Village. The greater significance of this, however, is more clearly demonstrated in the following analysis of the cross motion to amend.

Cross Motion to Amend

Plaintiff's opposition is incorporated in a cross motion to amend the complaint, under the same index number, and adding the following allegation:

"Plaintiff served a [n]otice of [c]laim upon defendant Village . . . on October 31, 2016. At least thirty days have elapsed since the service of such notice and that adjustment or [*2]payment has been neglected or refused by the Village . . . ."

Although the caption of the cross motion is unchanged, the caption of the proposed pleading omits the Town and there are no longer allegations of any sort against the Town. The Court therefore presumes by these omissions that plaintiff has abandoned — without having filed a discontinuance — her claims against the Town.

"Pursuant to CPLR 3025 (b), a party may amend its pleadings 'at any time by leave of [the] court,' which 'shall be freely given upon such terms as may be just'" (NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 156 AD3d 99, 101 [2017]; see Kimso Apts., LLC v Gandhi, 24 NY3d 403, 411 [2014]). Granting this motion would permit plaintiff to now be in compliance with the mandated pleading requirements of General Obligations Law § 50-i with the inclusion of the allegation in the complaint that at least thirty days have elapsed since the service of such notice of claim against the Village. Indeed, by now the thirty-day requirement of that statute has certainly passed.

Ordering such relief, however, would seemingly contradict another statutory construct that plaintiff, in its claim against the Village, must plead and prove compliance with the written notice requirements of another statute and another ordinance, Village Law § 6-628 and the Village Local Law §186-12 (see Katz v City of New York, 87 NY2d 241, 243 [1995]; Shepardson v Town of Schodack, 83 NY2d 894, 895 [1994]; Farnsworth v Village of Potsdam, 228 AD2d 79, 81 [1997]; Becker v City of New York, 131 AD2d 413, 415 [1987]; Acevedo v City of New York, 128 AD2d 488, 489 [1987]). These allegations are not included in the proposed amendment and upon this further basis defendants reaffirm their motion for dismissal of the proposed amended complaint — even before it is permitted.

As observed at the outset it is clear that plaintiff's failure to plead and prove compliance with the prior written notice provisions could be fatal to the negligence claim as is proposed to be asserted in the amended complaint (see Merchant v Town of Halfmoon, 194 AD2d 1031, 1032 [1993]; Horton v City of Schenectady, 177 AD2d 823, 824 [1991]). Here, however, the amended complaint — and the initial complaint for that matter — allege that "the municipality created or caused the hazardous condition" (see Akley v Clemons, 237 AD2d 780, 782 [1997]; Good v County of Sullivan, 198 AD2d 706, 708 [1993]; Merchant v Town of Halfmoon, 194 AD2d at 1032; Hogan v Grand Union Co., 126 AD2d 875, 876 [1987]). The allegation of having "created" the conditions complained of removes the requirement of pleading compliance with the prior written notice provisions with the Courts having long recognized two exceptions to the statutory rule: namely that the locality created the defect or hazard through an affirmative act of negligence (see Kiernan v Thompson, 73 NY2d 840, 842 [1988]); or where a "special use" confers a special benefit upon the locality (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]).

Therefore, having considered the Affirmation of Joshua D. Lindy, Esq. with Exhibits "A" through "E" attached thereto,[FN1] dated December 11, 2017, submitted in support of the motion; [*3]Affirmation of Kristie H. Hanson, Esq. with Exhibits "A" through "C" attached thereto, dated January 19, 2018, submitted in opposition to the motion and in support of the cross motion; Reply Affirmation of Joshua D. Lindy, Esq., dated February 2, 2018, submitted in opposition to the cross motion and in further support of the motion; and Reply Affirmation of Kristie H. Hanson, Esq., dated February 13, 2018, submitted in further support of the cross motion, it is hereby

ORDERED that defendants' motion for dismissal of the complaint pursuant to CPLR 3211 is denied in its entirety; and it is further

ORDERED that plaintiff's cross motion to amend the complaint is granted in its entirety; and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated December 11, 2017 and the undated Notice of Cross Motion filed on January 24, 2018. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry in accordance with CPLR 5513.

ENTER:

Dated: March 9, 2018

Lake George, New York

____________________________________

ROBERT J. MULLER, J.S.C. Footnotes

Footnote 1: The Court notes that the Affidavit of Deborah Foley, sworn to December 5, 2017, is attached as Exhibit "C," the Affidavit of Darlene Gunther, sworn to December 7, 2017, is attached as Exhibit "D" and the Affidavit of Dave Harrington, sworn to December 7, 2017, is attached as Exhibit "E."