Galluzzo v Town & Vil. of Harrison

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Galluzzo v Town & Vil. of Harrison 2019 NY Slip Op 34480(U) December 23, 2019 Supreme Court, Westchester County Docket Number: Index No. 64964/2016 Judge: Terry Jane Ruderman 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. INDEX NO. 64964/2016 FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 12/23/2019 ofright appeals as of To statutory time right time for appeals the statutory commence the To commence copy serve a copy (CPLR advised to serve are advised you are 5513[a]), you (CPLR 5513[a]), parties. upon all parties. of this order, with entry, upon of entry, notice of with notice this order, of YORK NEW YORK THE STATE SUPREME COURT STATE OF NEW COURT OF THE SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY --------------------------------~----------------------------------------)( ----------'---------- ---------------------------x ---------------------LORRAINE GALLUZZO, LORRAINE GALLUZZO, DECISION ORDER AND ORDER DECISION AND Nos. 1- 3 Motion Sequence Nos. Motiori Sequence Plaintiff, Plaintiff, -against-against- Inde)( 64964/2016 No. 64964/2016 Index No. HARRISON and TOWN and VILLAGE OF HARRISON AND VILLAGE TOWN AND CORP.," BILOTTA CONSTRUCTION CORP BILOTTA CONSTRUCTION Defendants. Defendants. -----------------------------------------------------~-------------------)( ----------------------------------------------------- .-------------------x RUDERMAN, J. RUDERMAN, Bilotta defendant Bilotta motion by defendant the motion with the The connection with considered in connection were considered papers were following papers The following the pursuant to CPLR judgment pursuant Construction ("Bilotta") for summary summary judgment CPLR 3212 3212 dismissing dismissing the Corp. {"Bilotta") Construction Corp. plaintiff Lorraine motion by plaintiff complaint and and all cross-claims cross-claims against against it (sequence (sequence 1); the motion Lorraine Galluzzo Galluzzo complaint both against both and against favor and her favor judgment in her for an order summary judgment granting summary 3212 granting CPLR 3212 pursuant to CPLR order pursuant Village Town and defendant Town motion by defendant the motion defendants (sequence 2); and and Village and the liability (sequence of liability issue of the issue defendants on the the to CPLR 3212 pursuant toCPLR of Harrison Harrison ("Harrison") ("Harrison") for summary summary judgment 3212 dismissing dismissing the judgment pursuant of (sequence 3): complaint against it (sequence cross-claims against and all cross-claims complaint and Numbered Numbered 1 2 3 Papers Sequence 1 Papers - Sequence AA Exhibits A - AA Notice Affirmation, E)(hibits Motion, Affirmation, of Motion, Notice of CC Exhibits Affidavits, E)(hibits A - CC Affirmation Opposition, Affidavits, Affirmation in Opposition, Reply Affirmation Reply Affirmation Sequence 2 - Sequence TT Exhibits A - TT Notice Affidavits, E)(hibits Affirmation, Affidavits, Motion, Affirmation, of Motion, Notice of AA R Exhibits B, K - 0, - U, W - AA Bilotta Opposition, E)(hibits in'Opposition, Affirmation in' Bilotta Affirmation in Opposition Harrison Affirmation Opposition Affirmation in Harrison Reply A. Exhibit A, Affirmation, E)(hibit Reply Affirmation, 1 I [* 1] 1 of 11 4 5 6 7 INDEX NO. 64964/2016 FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 12/23/2019 - Sequence Sequence 3 Exhibits - M " Affirmation, Exhibits Notice Motion, Affirmation, of Motion, Notice of Affidavits, Exhibits Affirmation Opposition, Affidavits, Exhibits A - GO 00 Affirmation in Opposition, 8 9 October and fall on October trip and alleged trip plaintiffs alleged the plaintiffs This frqm the arising frqm action arising injury action personal injury This is a personal J located at 211 property located the property of the outside of public sidewalk 7, 2015 at approximately sidewalk outside the public p.m:, on the approximately 7 :20 p.m., Underhill the comer property is situated Underhill That property situated at the comer of of Underhill York. That New York. Harrison, New Avenue, in Harrison, Underhill Avenue, the of the side of Harrison Street the Harrison place on the Avenue Street side took place accident took plaintiffss accident Street; plaintiff Harrison Street; and Harrison Avenue and , ' adjacent two adjacent between two differential between height differential property. tripped due to a height that she tripped contends that Plaintiff contends property. Plaintiff replacement of based on Bilotta is based concret~ slabs slabs of of the sidewalk. The The claim claim against against Bilotta on its replacement of the sidewalk. concrett of Village of and Village Town and the Town with the into with entered into sidewalks in the area area pursuant contract it entered a.2003 contract pursuant to a2003 sidewalks and its of the sidewalks ownership of based on its ownership Harrison. sidewalks and claim is based Harrison, the claim against Harrison, Harrison. As against supervisory obligation obligation under 2003 contract. contract. under the 2003 supervisory of portion of the portion construct the not construct did not In moving moving for summary summary judgment, that it did asserts that Bilotta asserts judgment, Bilotta that work that only work the only that the demonstrates that evidence demonstrates the sidewalk at issue the evidence all the that all contends that here. It contends issue here. the sidewalk Underhill the Underhill on the was done Avenue, was Underhill Avenue, Bilotta sidewalks adjacent adjacent to 211 Underhill done on the sidewalks performed on the Bilotta performed the on the relies on contention relies This contention Avenue side of of the not on the Harrison Street side. This Harrison Street property, not the property, Avenue the where the regarding where assertions regarding whose assertions Bilotta, whose deposition Joseph Bilotta, President, Joseph of its President, testimony of deposition testimony memory. his memory. bas~d on his were bas~don company performed sidewalk work 2003 were work in 2003 performed sidewalk company notice law, Harrison's summary summary judgment applicable prior prior written written notice relies:on the applicable motion relies~on judgment motion Harrison's negligence affirmative negligence the affirmative regard to the With regard law...· With the law and the inapplicability exceptions to the the exceptions of the inapplicability of exception is limited the exception that the exception to the argues that limited to affirmative affirmative law, it argues notice law, written notice prior written the prior exception dangerous condition of a dangerous the existence result in the actions of of the the municipality municipality that immediately result existence of condition that immediately actions theory underlying theory plaintiffss underlying (citing Oboler v City City of [2007]). Since Since plaintiff NY3d 888, 889 [2007]). New York, 8 NY3d ofNew (citing Oboler 2 [* 2] 2 of 11 / / FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 INDEX NO. 64964/2016 RECEIVED NYSCEF: 12/23/2019 affirmative reasons, any such Harrison reasons, is that slowly over such affirmative time, Harrison over time, sank slowly slab sank concrete slab lower concrete the lower that the negligence could not have immediately resulted existence of of a dangerous dangerous condition. condition. resulted in the existence have immediately negligence could summary motion for summary own motion her own of her support of In opposing and in support motions and defendants' motions opposing defendants' the of the part of thaLwas part List that~was Location List the Site Location cites the judgment plaintiff cites liability, plaintiff of liability, issue of judgment on the issue replaced, including were to be replaced, contract, which identified the property addresses where sidewalks were including where sidewalks property addresses which identified contract, Robert engineer, Robert professional engineer, of a pro~essional affidavit of 211 Underhill submits the the affidavit further submits Plaintiff further A venue. Plaintiff Underhill Avenue. those replaced those that replaced Bilotta that was Bilotta that it was Fuchs, examination, that upon his examination, based upon concludes, based who concludes, Fuchs, who two between the two height differential particular of sidewalk. sidewalk. Fuchs differential between that the height maintains that Fuchs maintains portions of particular portions failure to contractor's failure the contractor's due to the time, due over time, concrete slabs slabs on which developed over plaintiff fell developed which plaintiff concrete issue. sidewalk at issue. of sidewalk slab of the slab installing the provide before installing subgr~de before well-compacted subgr~de and well.compacted suitable and provide a suitable Harrison failed that Harrison As to plaintiff claim against against Harrison, contends that failed to satisfy satisfy its Harrison, she contends plaintiffss claim compliance work for compliance contractor's work the contractor's contractual obligation obligation to supervise, inspect and and approve approve the supervise, inspect contractual standards. industry standards. and industry with requirements and contract's requirements the contract's both the with both Analysis. Analysis , Motion Sequence Sequence 1 Motion make a burden to make initial burden the initial When judgment, it has the summary judgment, moves for summary defendant moves When a defendant law (see matter of judgment as a, showing that, if unrebutted, establishes that entitled to judgment a"matter of law that it is entitled unrebutted, establishes that, if showing 361, 364 NY2d 361,364 Pomeroy, 35 NY2d Andre v Pomeroy, Alvarez 320,324 [1986]; [1986]; Andre NY2d 320,324 Hosp., 68 NY2d Prospect Hosp., Alvarez v Prospect sidewalk performed sidewalk that it performed acknowledges that [1974]). In Bilotta's judgment, it acknowledges summary judgment, motion for summary Bilotta's motion [1974]). , ' work performed any work that it performed of.any work area in 2003, emphasizes the absence absence of any evidence evidence that but emphasizes 2003, but work in the area then or at any other at the particular location where other time·. time". It submits submits transcripts transcripts of of plaintiff'fell, then where plaintiff'fell, particular location who Greechan, who Hugh Greechan, and Hugh pngineer, and Town pngineer, current Town depositions Harrison's current Amodeo, Harrison's Michael Amodeo, of Michael depositions of 3 [* 3] 3 of 11 FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 INDEX NO. 64964/2016 RECEIVED NYSCEF: 12/23/2019 the search conducted the Amodeo conducted Bilotta. Amodeo was the search Joseph Bilotta. of Joseph that of well as that 2003, as well Engineer in 2003, Town Engineer the Town ', . performed sidewalk had performed Bilotta Construction of Harrison's initially disclosed disclosed that Construction had sidewalk that Bilotta which initially records which Harrison's records of Greechan contract. Greechan 2003 contract. the 2003 under the replacement Avenue under Underhill Avenue of 211 Underhill vicinity of the vicinity work in the replacement work was workmanship was that its workmanship completed, that confirmed Bilotta was completed, performed by Bilotta work performed the work that the confirmed that documents also thereafter. Submitted work locations approved, and that locations thereafter. Submitted documents the work recalled to ,the not recalled was not that it was approved, , ( Town. the Town. of the satisfaction of the satisfaction completed to the establish was completed contract was under the contract work under Bilotta's work that Bilotta's establish that that explained that who explained Bilotta, who Joseph Bilotta, of Joseph Bilotta testimony of deposition testimony the deposition relies on the primarily relies Bilotta primarily repairs at · that it called meaning that the contract was "point of of repair" contract, meaning call~d for doing doing "spot" "spot" repairs repair" contract, was a "point the contract Bilotta sidewalks. Mr. Bilotta entire sidewalks. identified re-constructing entire than re-constructing rather than sidewalks, rather of sidewalks, sections of identified sections identified documents, identified bidding documents, the bidding with the elaborated included with was included which was List, which Location List, the Site Location that the elaborated that were expected that were the general locations locations and approximate approximate sidewalk sidewalk quantities quantities (in linear linear feet) that expected for the general upon the rely upon had to rely work had the work perfomiing the the job under the 2003 contractor performing the contractor that the but that Contract, but 2003 Contract, job under the indicate the Department to indicate Engineering Department physical Harrison's Engineering made by Harrison's later made were later that were markings that physical markings the Site the inclusion replaced. Therefore, specific sections sections of of sidewalk sidewalk that Therefore, the inclusion in the be replaced. that w~re to be specific adjacent sidewalks adjacent the sidewalks that all the mean that not mean Location of the the address Avenue did not Underhill Avenue address 211 Underhill List of Location List indicated List indicated Location List the Site while the that while explained that to that Site Location Bilotta explained replaced. Mr. Bilotta were replaced. address were that address personal his personal based on his Jhat address, that linear feet of of sidewalk sidewalk were address, based replaced at ~hat were to be replaced that 90 linear located on the were all located feet of linear feet knowledge and memory memory of ofthe those specified specified linear of sidewalk sidewalk were job, those the job, knowledge company that his company acknowledged that Bilotta acknowledged Underhill While Mr. Bilotta property. While the property. of the side of Avenue side Underhill Avenue of Harrison Street, performed some sidewalk sidewalk replacement down Harrison Street, including including in front front of farther down replacement 'York farther performed some portion of Harrison Street, Street, he insisted insisted that that it did did no work the portion of sidewalk sidewalk adjacent adjacent to 211 work on the 37 Harrison Underhill Avenue. Underhill Avenue. 4 [* 4] 4 of 11 INDEX NO. 64964/2016 FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 12/23/2019 entitlement of entitlement facie showing prima facie making a prima The satisfied Bilotta's showing of of making burden of Bilotta' s burden foregoing satisfied The foregoing proof in plaintiff to "produce to judgment. The burden shifted to plaintiff "produce evidentiary evidentiary proof therefore shifted burden therefore judgment. The .- action" the action" of the trial of require a trial which require fact which of fact admissible issues of material issues establish material sufficient to establish form sufficient admissible form NY2d 557,562 (Zuckerman v City City of 557, 562 [1980]). [1980]). New York, 49 NY2d ofNew (Zuckerman that sidewalks opposition, plaintiff out that contract documents documents show show that sidewalks that the contract points out plaintiff points In opposition, nor Harrison nor neither Harrison that neither and that contract, and the contract, adjacent covered by the were covered A venue were Underhill Avenue adjacent to 211 Underhill adjacent to 211 the sidewalks of the part of which part Bilotta sidewalks adjacent establishing which affirmatively establishing records affirmatively have records Bilotta have Bilotta's relies entirely Underhill effect,'Bilotta relies entirely on Mr. Bilotta's Bilotta. In effect,.Bilotta replaced by Bilotta. were replaced Avenue were Underhill Avenue claim. factual claim. memory central factual memory for the central '. ' the replaced the Bilotta replaced that Bilotta plaintiffs claim The supports plaintiffs claim that engineer supports plaintiffs engineer affidavit by plaintiffs The affidavit JJ his company that his Bilotta's claims Joseph Bilotta's portion of the sidewalk where disputes Joseph claims that company Fuchs disputes where she fell. Fuchs the sidewalk portion of replacing only replacing Underhill, only side at 211 Underhill, did not replace any sidewalk Street side Harrison Street on the Harrison sidewalk on not replace Harrison replaced on Harrison that the first sidewalks sidewalks on the Underhill side, and that sidewalks he replaced A venue side, Underhill Avenue sidewalks based on was based Fuchs' conclusion Underhill. Fuchs' Street began Street, to the west of211 conclusion was on 211 Underhill. west of Harrison Street,_ began at 37 Harrison Street sidewalks at the sidewalks inspected the that he inspected states that his observation observation of of the sidewalks. sidewalks. The affidavit states Fuchs affidavit The Fuchs two found two and found 21, 2019, and March 21,2019, and March 2018 and and October 22, 2018 Avenue on October Underhill Avenue around 211 Underhill and around newer, weathering; the second wear and more wear distinct groups groups of of sidewalk, sidewalk, one older; evidencing evidencing more and weathering; second newer, one older, distinct sidewalk the sidewalk of the parts of newer parts The newer wear. The with a fresher fresher appearance, appearance, smoother smoother texture, texture, and and less less wear. with flags) on feet (7 flags) with 112 square adjacent square feet, with square feet -~pproximately 240 square totaled ,~pproximately240 Underhill totaled adjacent to 211 Underhill the side the side side adjacent adjacent to Underhill and 128 12~ square square feet (8 flags)on flags) on the side adjacent adjacent to Avenue and Underhill Avenue A venue Underhill Avenue the Underhill Harrison Street. Street. Fuchs observed that sections of of sidewalk sidewalk on the newer sections that the newer Fuchs observed Harrison appearance, overall appearance, same overall the same have the side at 211 Underhill, replacing, have admitted to replacing, Bilotta admitted that Mr. Bilotta Underhill, that 5 [* 5] 5 of 11 I. INDEX NO. 64964/2016 FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 12/23/2019 of front of exist in front that exist of sidewalk newer sections including sections of sidewalk that condition, as newer and condition, design, and texture, design, including age, texture, work. the contract part of replaced as part 37 and 38 Harrison Street which confirmed he replaced ofthe contract work. Bilotta confirmed which Mr. Bilotta Harrison Street of 211 front of replaced in front been replaced had been sidewalks had In view that no sidewalks Amodeo that Michael Amodeo of Michael testimony of the testimony of the view of " that concludes that Fuchs concludes contract, Fuchs Bilotta contract, the Bilotta Underhill under the performed under work performed the work after the Avenue after Underhill Avenue here. the sidewalk Bilotta of the sidewalk at issue issue here. portion of replaced the portion have replaced must have Bilotta must refute" "conclusively refute" not "conclusively does not expert does While plaintiffs expert observations by plaintiffs foregoing observations the foregoing While the favor, it plaintiffs favor, judgment in plaintiffs warrant summary Bilotta's summary judgment argues, so as to warrant plaintiff argues, assertion, as plaintiff Bilotta's assertion, work the work that the Bilotta's assertion Mr. Bilotta's does create create a factual dispute as to the accuracy of ofMr. assertion that truth or accuracy the truth factual dispute does here. issue here. slabs at issue sidewalk slabs performed include the sidewalk not include company did not his company performed by his inch characterized as an "abrupt Fuchs characterized After "abrupt 2 to 3 inch which Fuchs condition, which the condition, that the concluding that After concluding Fuchs' affidavit hazard, Fuchs' tripping hazard, difference in elevation elevation along along the sidewalk," sidewalk," constituted constituted a tripping affidavit goes goes difference " by of part of the part on the negligence on by negligence caused was caused qefect was on to explain explain the reason for his the defect that the conclusion that his conclusion the reason " Construction: Bilotta Bilotta Construction: - / / "the uneven condition of of the sidewalk sidewalk on which Galluzzo fell on on October October 7, which Ms. Galluzzo uneven condition "the the into the sidewalk that of settlement 2015, had occurred as a result of differential settlement of that sidewalk into differential result of 2015, had occurred unsuitable or of unsuitable characteristic of underlying supporting soil. The settlement is characteristic The settlement underlying supporting the voids causing thereby inadequately compacted subgrade material, thereby causing voids to form form in the material, subgrade compacted inadequately was sidewalk was the sidewalk below the voids below of voids presence of The presence sidewalk slab. The the sidewalk below the soil below was "and was could be and probe could confirmed at the time of my inspection, inspection, whereby whereby a probe time of confirmed overbearing the result, the overbearing inserted by Mr. Angelides underneath the slab. As a result, Angelides underneath inserted the downward as the causing it to subside sidewalk was supported, causing subside downward adequately supported, not adequately was not sidewalk suitable, a provide to failure The failure time. The disturbed soil naturally naturally 2onsolidated ~onsolidated over over time. provide suitable, disturbed prior to the installation stable, and and well compacted subgrade subgrade prior installation of of the sidewalk sidewalk does does well compacted stable, of behalf defect and standards industry not conform to generally accepted industry standards and is a defect on behalf of not conform generally accepted [,r.] state: [f.] documents also explicitly Bilotta. The The specifications specifications in the contract contract documents explicitly state: Bilotta. The subgrade. prepared well a "The concrete sidewalk shall be placed well prepared subgrade. The on placed shall sidewalk "The concrete The graded ... properly graded and properly subgrade shall shall be undisturbed ...The tamped and machine tamped undisturbed or machine subgrade measured (95%) as percent (95%) compacted material material shall shall have h~lveaa density of ninety ninety five percent a~measured density of compacted by Standard Standard Proctor Test." Proctor Test." 6 [* 6] 6 of 11 INDEX NO. 64964/2016 FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 12/23/2019 performed Construction performed Biiotta whether Bilotta to whether This suffices to create an issue fact as t6 Construction of issue of create claim suffices This claim -. ."; .. . ·. - ·; . . . .• . ", - . work as the work Harrison officials that Harrison the work despite the evidence that officials approved approved the the _evidence negligently, despite work negligently, . . _, ~ ~ satisfactorily completed. satisfactorily completed. contractlial • while "a plaintiff, while As to whether "a contractual. toward plaintiff, duty toward has any duty Co~s_truction h(lsany Bilotta Co~struction whether Bilotta party" third party" favor of in favor tort liability to tort rise to give rise obligation, standing standing alone, generally not liability in of a third not give will generally alone, will obligation, circumstances, a some circumstances, "under some 8 [2002]), (Espinal 98 NY2d 138[2002]), "under NY2d 136, 13 Snow_. Contrs., Melville SnowContrs., (Espinal v Melville ~ , - '.; - .~' outside the , ; ·· pe~sons - outside certain persons care to certain of care duty of party assuines a duty thereby assumes contract thereby into a contract enters into who enters party who \ . . . failing to party, in failing the contracting '·where the contract" (id. "at 139). One One of of those situations is "where contracting party, those situations contract" af harm of harm instrument of or instrument exercise of his duties, -launches otce of performance_ ofhisduties,launchesafotce the performance care in the reasonable carein exercise reasonable ,\ the of the theory of Fuchs' theory on Fuchs' Base~ on (id. at 140 [intemalquotation [intemalquotation makrsand citation omitted]). Base? omitt~d]). citation and makrs have be said may be. Bilotta actions contractor' s negligence,~f correct, Bilotta actions in 2003 2003 may said to have found to be correct, it_ is f(mnd negligence, Jf it contractor's condition. defective condition. a defective creating a resulted in creating launched harm that subsequently resulted that subsequently of harm force of launched a force the · di~missing the Accordingly, justify summaryjudgmer summary judgment it di~missing nodustify does not contractor does status as contraetor Bilotta's status Accordingly, Bilotta's complaint against against it. complaint causal the causal be dismis'sed because the must bydismis'sedbecause Finally, against it must claim against the claim that the co~tends that Bilotta contends Finally, Bilotta cites attenuated... It cites too attenuated repairs is too sidewalk repairs connection 2003 sidewalk negligence in the 2003 alleged negligence between its alleged connection between the performance of between the proximity between case law law that "there must the performance of the temporal proximity reasonable temporal be a reasonable must bea that "there case , . . '. ' . . AD2d 16, 21 285 AD2d Inc., 285 Indus. Inc., Callanan Indus. (Church v Callanan contractual obligation obligation and and the resulting injury" (Church resulting injury" contractual under Bowever, under NY3d 981 [2012]). [3d Dept2001]; Williams v State York, 18 NY3d981 [2012]). "However, ofNew York, State of also Williams see also Dept 2001]; see This is theory. This ~nthis theory. warranted onthis the present circumstances, dismissal dismissal as a matteroflaw is'notwarranted mattet:of law is.not present circumstances, of amount of significant amount that a significant actions that particularly since, according according to Fu?hs, Bilotta's actions due to Bilotta's Fu??s, it is due particularly so since, 7 \ [* 7] 7 of 11 INDEX NO. 64964/2016 FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 12/23/2019 claim plaintiffs clai~ apparent. ·Noris becan1e apparent. time egligence became 'Noris plaintiffs ofl1negligence claim of fora claim basis fora before the basis passed before time passed of causation causation too speculative to support support liability. liability. too speculative of Sequence 3 Motion Motion Sequence negligent in was negligent Bilotta, was while Bilotta, The that while Harrison is that against Harrison claim against plaintiffs claim of plaintiffs essence of The essence pouring the before pouring tamp down properly tamp using subgrade and failing failing to properly down the s.9il soil before unsuitable subgrade using an unsuitable and supervise and p~operly supervise f~iling to properly negligent in f'liling concrete was negligent Harrison was slabs, Harrison sidewalk slabs, the sidewalk concrete for the . . ~ against it claims against plaintiffs claims that plaintiffs inspect pefengant Harrisonarg~es that regard. pefenc!antHarrisonarg~es t?at regard. work in t?at Bilotta's work inspect Bilotta's . . those c,opies of Village; of the Town Town and and Village; of those requirements of notice requirements written notice prior written the prior barred by the are barred ~ .. .. § No. 138). To Doc. No. NYSCEF Doc. sequence 3 (see NYSCEF provisions to motion sequence exhibit L tornotion appended as exhibit provisions are appended Jacqueline ., of Jacqueline affidavit of the affidavit Harrison submits prove submits the notice, Harrison written notice, prior written required prior the required lacked the that it lacked prove that . . performed for was performed that a se~;ch asserts that who asserts Greer, Clerk Clerk of of the Town'and of Harrison, se~ch was Harrison, who Village of .md Village the Town· Greer, '\ that no and that stion, and tlleJocationirtque conditions., at the any written relating location in question, dangerous· conditions relating to d~ngetous' complaint written complaint , . ')· . ...') . : ", . . ' . " . ' Harrison provided to Harrison was provided condition was dangerous condition prior '.claimed dangerous of the :clai~ed existence of the existence of the notice of written notice prior written accident, October prior date of of the accident, October 7, 2015. 2015. prior to the date . enacted by , been enacted have been provisions have notice provisions Plaintiff written notice prior written dispute-that prior not dispute'that does not Plaintiff does . contends Rather, she contends notice, Rather, written notice, prior written Harrison, rimnicipalityfeceived prior the t1mnicipalityreceived contend th~t the Harrison, or contend law. the law. that defecUnin question question does d()esnot scope of of the within the scope not fall within that the defect slabs at uneven slabs the uneven show that affidavits to show and affidavits Plaintiff tlpt the evidence and photographic evidence submits photographic Plaintiff submit~ • -· I - I Mary mother, Mary affidavit of plaintiffs mother, the affidavitofplaintiffs issue relies on the June 2007, and relies back as June.2007, present as far back were present issue were plaintiffs before plaintiffs Ann establish that in June 2015, approximately months before fourmonths approx.imately four June 2015, thatin Fiorelli, to establish Ann Fiorelli, Belmont. Ron Belmont. Mayor, Ron Harrison's Mayor, by Harris6n's observed by accident, the uneven condition of of the sidewalk was observed sidewalk was uneven condition accident, read notice .statutes, written notice that "prior Citing she relies "prior written .statutes, read holding that law holding case law relies on case evidence, she this evidence, Citing this 8 [* 8] 8 of 11 J FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 INDEX NO. 64964/2016 RECEIVED NYSCEF: 12/23/2019 the streets conditions in the physical conditions strictly, as [they] should should be read, streets or sidewalks sidewalks read, [refer] to physical strictly, *** they are given unless they village officers which come to the attention attention of of the village officers unless given immediately come not immediately which do not marks quotation marks actual [1990] [internal [internal quotation NY2d 881, 882 [1990] Ja_hoda, 75 NY2d (Hughes v Jahoda, thereof' (Hughes notice thereof' actual notice renders observation renders personal observation Belmont's personal of Belmont's and citations notice of actual notice the actual that the argue that omitted]), to argue citations omitted]), requirement inapplicable. notice requirement the prior inapplicable. written notice prior written supra; Jahoda, supra; Hughes v Jahoda, relies (see Hughes However, plaintiff relies which plaintiff on which cases on the cases of the import of the import However, the written prior written that prior not that 366 (1966), 362; 366 Doremus Vill. of (1966), is not NY 2d 362, Lynbrook, 18 NY ofLynbrook, Inc_orporated Vil!. Doremus v Incprporated the notice of non-written, notice have actual, officers have notice if municipal actual, if if non-written, of the municipal officers inapplicable if provisions are inapplicable notice provisions not conditions do not complained-of conditions of complained-of kinds of certain kinds claimed that certain hold that cases hold those cases Rather, those defect. Rather, claimed defect. of kinds of other kinds whereas other defective signage, fall within such as defective signage, whereas law at all, such notice law written notice prior written the prior within the written prior written the prior by the conditions, such such as "holes "holes and breaks" "streets,or sidewalks," are covered covered by .or sidewalks," breaks" in "streets conditions, " . into category into The category 366). The NY 2d at 366). Lynbrook, 18 NY ·ofLynbrook, notice Vill..of Incorporated Vil!. Doremus v Incorporated law (see Doremus notice law about, or told about, was told officer was municipal officer which whether a municipal depend on whether not depend does not defect falls does claimed defect which a claimed even personally observed, a defect. defect. personally observed, even /I intended to,be that is intended defect that of defect type of the type The exactly the here is exactly claimed here defect claimed sidewalk defect The sidewalk ~ that "[a] rule that the rule covered by the matter is covered this matter covered "[a] Accordingly, this notice law. Accordingly, written notice prior written the prior covered by the within liable for a defect held liable notice law municipality adopted a prior law cannot cannot be held defect within written notice prior written that has adopted municipality that requirement the requirement exception to the unless an exception notice, unless the scope scope of of the written notice, requisite written the requisite absent the law absent the law 2018]). Dept 2018]). 785, 785 [2d Dept AD3d 785, applies" (Taustine v Incorporated ViZ.of Lindenhurst, 158 AD3d ofLindenhurst, Incorporated Vil. applies" (Taustine the of the notice of written notice prior written have prior not have Plaintiff does not dispute Harrison's assertion that that it did not Harrison's assertion not dispute Plaintiff does the satisfy the fails to satisfy notice, fails oral notice, like oral claimed sidewalk sidewalk defect. knowledge, like actual knowledge, even act~al Notably, even defect. Notably, claimed 9 [* 9] 9 of 11 FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 INDEX NO. 64964/2016 RECEIVED NYSCEF: 12/23/2019 AD3d 665 [2d Hempstead, 120 AD3d written Vil. Of Of Hempstead, Incorporated Vil. requirement (see Wilson v Incorporated notice requirement written notice 2005]). Dept 2005]). 450 [2d Dept AD3d 450 Jefferson, 18 AD3d Port Jefferson, Dept Vil. of of Port Incorporated Vil. Mahler v Incorporated 2014]; Mahler Dept 2014]; claimed ., where it is claimed apply where not apply provisions do not Plaintiff notice provisions written notiCe prior written that prior argues that next argues Plaintiff next .I (127 of Cortlandt Poveromo v Town citing Poveromo defect, citing that T,own of Cortlandt (127 the defect, created the affirmatively created municipality affirmatively the municipality that the . I • that "once the applicable AD3d complete expression expression of ofthe applicable law law is is that "once the more complete 2015]). A more Dept 2015]). AD3d 835 [2d Dept demonstrate plaintiff to demonstrate the plaintiff shifts to the burden shifts municipality lack of 'the burden notice, 'the written notice, of written establishes'lack municipality establishes' rule the rule the applicability exceptions to the recognized exceptions two recognized of two one of of one applicability of rnunicipality the rnunicipality that the that - · resulted in a that a special.use negligence or that affirmatively created created the defect defect through ofnegligeI).ce special,use resulted through an act of affirmatively AD3d at 666, Hempstead, 120 AD3d ofHempstead, special Jncorporated'Vil. of (Wilson v IncorporatedVil. locality"' (Wilson the locality'" benefit to the special benefit \ - p\aintiff's Thus, is is plaintiff's NY3d 726, 728 [2008]). quoting Yarborough v City City of [2008]). Thus, New York, 10 NY3d726, ofNew quoting Yarbor"ough Harrison created burden demonstrate that created the defect. defect. that Harrison burden to demonstrate limited "[is] limited exception "[is] creation exception affirrnative creation The that the affirmative explained that Appeals has explained of Appeals Court of The Court condition" dangerous condition" of a dangerous existence of the existence to work [municipality] that results in the immediately results that immediately the [municipality] work by the municipality that the municipality Even assuming [2007]). Even (Oboler v City of of New 888,889 assuming that 889 [2007]). NY3d 888, New York, 8 NY3d (Oboler work.of the work-of supervise the properly supervise failing to properly arguably negligence, by failing of negligence, act of affirmative act engaged in an affirmative arguably engaged applies "where only applies exception only creation exception forming "where affirrnative creation sidewalk, the affirmative under the sidewalk, sublayer under forming the sublayer been immediately . . . the allegedly allegedly dangerous dangerous condition condition would immediately apparent" apparent" (Laracuente (Laracuente v have been would have danger the danger since the Laracuente,, since Thus, in Laracuente 2013]). Thus, Dept 2013]). City of of New AD3d 822, 823 [2d Dept New York, 104 AD3d been have been would have roadway would the roadway alongside the erected alongside posed section of fence erected of fence curved section claimed curved the claimed posed by the whereas in preclude the claim not preclude immediately apparent, the prior claim (id.), (id.), whereas law did not notice law written notice prior written immediately apparent, set was set City was the City against the verdict against 2011 ]), a verdict Nieves of New York (87(87-AD3d684 [2<l" Dept 2011]), AD3d 684 [2&.Dept New York Nieves v City of evidence any evidence provide any not provide did not plaintiff did aside the plaintiff because the notice because written notice prior written of prior lack of aside due to a lack 10 [* 10] 10 of 11 INDEX NO. 64964/2016 FILED: WESTCHESTER COUNTY CLERK 12/24/2019 09:49 AM NYSCEF DOC. NO. 236 RECEIVED NYSCEF: 12/23/2019 tending to show show that that the allegedly allegedly 11egligent negligent repair repair work work immediately resulted in a dangerous dangerous tending immediately resulted condition (id. at added]) .. .. condition at 684 [[emphasis emphasis added]) .\ Here, the allegedly allegedly negligent negligent repair repair workdiinot workdiJnot immediately immediately result result i~ i~a dangerous dangerous Here, . . .. , ' condition. On the contrary, contrary, the dangerous dangerous condition condition only only becmne apparentyears condition. becrune ..apparent years later. I • Accordingly, plaintiff failed to demonstrate demonstrate grounds for the.. affirmative affirmative causation causation exception Accordingly, plaintiff has failed grounds exception . -~ ' .~ -. "" written notice notice law, law, and Harfison is entitledt~ entitled.t~ summary summary judgment dismissing this this to the prior prior written and Harfison judgment dismissing ··',-' .- . (( action as against against the Town Town and Village. action and Village. Based on the the. foregoing, foregoing, it is hereby hereby Based ORDERED that that the motion motion by defendant_Bilotta defendant.BilottaConstruction(sequence summary ORDERED Construction (sequence 1) for summary \. judgment denied; and and it is further further judgment is denied; ORDERED that motion by plaintiff (sequence 2) for summary'Judgment summary'Judgment against against the ORDERED that the motion plaintiff (sequence . . defendants on the issue issue of of liability liability is denied; denied; and it it is defendants isfurther further ORDERED that motion by defendant Town and arid Village Village of of Harrison Harrison (sequence (sequ~nce 3) for for .,.ORDERED that the motion defendant Town summary judgment dismissing cross-claim· against is further summary judgment dismissing the claim claim and andcross-daim' ag~inst it is granted; granted; and and it is further ORDERED that remaining parties appear on Tuesday, Tuesday, February February 4, 2020 2020 at 9:15 ORDERED that the remaining parties are to appear ) ) Settlement Conference. Coriference. Part, Part, Courtroom Courtroom 1600, Westchester Westchester County County S~preme S~preme Court, Court, a.m. in the Settlement 111 Dr. Martin Martin Luther Luther King King]r. Blvd, White White Plains, Plains, New York, schedule a trial. triaL 111 Jr. Blvd, NewY ork, to schedule This constitutes constitutes the Decision Decision and Order Order of of the Court. Court. This Dated: White White Plains, Plains, New York Dated: New York December:l!J, 2019 December~ 2019_ ,_ 11 11 [* 11] 11 of 11 \\

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