Sundack v County of Westchester

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Sundack v County of Westchester 2019 NY Slip Op 34666(U) December 12, 2019 Supreme Court, Westchester County Docket Number: Index No. 69456/2016 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. FILED: WESTCHESTER COUNTY CLERK 12/13/2019 10:53 AM NYSCEF DOC. NO. 43 INDEX NO. 69456/2016 RECEIVED NYSCEF: 12/12/2019 To commence commence the the statutory statutory time time for appeals appeals as ofright of right (CPLR (CPLR 5513[a]), 5513(a]), you you are are advised advised to serve serVe a copy copy of of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY -------------------------------------~---~--------------~-~-------------------~)C ------------------------------------------------------ ---------------------·x TRACIE TRACIE A. SUNDACK, SUNDACK, Plaintiff, Plaintiff, \\ -against-against- DECISION AND AND ORDER· ORDER. DECISION Motion No. 1 Motion Sequence Sequence NO.1 Inde)CNo. 69456/2016 Index No. 69456/2016 THE THE COUNTY COUNTY OF WESTCHESTER, WESTCHESTER, Defendant. Defendant. -----------------------------------------------------------------------------x_ ---------------------------------------------~--------------------------~------)C RUDERMAN, RUDERMAN, J. The papers were The following following papers were considered considered in connection connection with with defendant's defendant's motion motion for summary summary judgment dismissing pursuant to CPLR judgment dismissing the the complaint complaint pursuant CPLR 3212: 3212: Papers Numbered Papers Numbered Notice of A-- K, Memorandum 1 Notice of Motion, Motion, Affirmation, Affirmation, Exhibits E)ChibitsA Memorandum of of Law Law Affirmation A, Memorandum 2 Affirmation in Opposition, Opposition, Exhibit E)ChibitA, Memorandum of of Law Law Affirmation in Reply Reply Affirmation 3 plaintiff Tracie This personal injury This personal injury action action arises arises out out of of plaintiff Tracie A. Sundack' Sundack's s trip trip and and fall on the the New York Bron)CRiver Pathway in Scarsdale, Scarsdale, New York on December December 18, 2015 2015 at approximately appro)Cimate1y 11:00 a.m. Bronx River Pathway people.moving Sundack was was jogging along the paved when she approached approached a group group of of people. moving at Sundack jogging along paved pathway pathway when a slower slower pace, pace, and attempted attempted to pass pass them them on the the left. As she did did so, she alleges, alleges, she stepped stepped off off the pavement, pavement, tripped tripped on a piece piece of of wood wood protruding protruding from from the the ground, ground, and and fell. Plaintiff Plaintiff testified testified at a deposition piece of deposition that that the piece of wood wood appeared appeared to be the remnant remnant of of a tree tree that that had had been been cut down. doWn. Defendant County County of of Westchester Westchester move~ for summaryjudgment summary judgment dismissing dismissing the the complaint complaint Defendant against it on the the grounds grounds that that it it did not not create create the the alleged alleged defect defect or have have actual actual or constructive constructive against knowledge knowledge of of it, and that that plaintiff plaintiff failed failed to comply comply with with the applicable applicable prior prior written written notice notice requirement prior written requirement (see Laws Laws of of Westchester Westchester County County § S 780.01). 780.01). In support support of of its prior written notice notice defense, defendant defendant submits submits affidavits affidavits from the commissioner commissioner of of the of Public Works the Department Department of Public Works defense, Transportation, Hugh Hugh Greechan, Greechan, and the clerk clerk of of the Board of Legislators, and Transportation, Board of Legislators, whose whose name name is ') , either Sunday Sunday Vanderberg, Vanderberg, the name recited at the beginning of the affidavit, or Malika either name recited beginning of the affidavit, Malika Vanderberg, the name name under under the signature. signature. Vanderberg Vanderberg indicates indicates that "researched and_ and Vanderberg, that she has "researched , , reviewed the official official records records within within the Board of Legislator's Legislator's control, control, specifically specifically the record record of of reviewed Board of [* 1] 1 of 4 INDEX NO. 69456/2016 FILED: WESTCHESTER COUNTY CLERK 12/13/2019 10:53 AM NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 12/12/2019 no such-written written notices notices received pursuant Westchester County County Code§ Code S 780.0l, 780.01 r and and such. . written notice· notice pursuant .to Westchester received written . . . . . . . - ~ , . ' Sununons and Complaint of a defective defective condition condition at the location described in the attached attachedSun1monsand Complaint arid and location described of Greechan _ The Greechan Notice of of Claim Claim has_ hasbeen'rec,eived within the past past five years years by t~ethe County." County." · The been ·rec.eived within Notice the Department records affidavit indicates indicates that:he·has that he-has "searched "searched and and reviewed reviewed the the official official records within withinthe Department affidavit .· . .. "' . . >v . . '\ -"", t~e-:type notices of written notices of Public and Trarisportation'scontrol, Transportation's control, specifically specifically for written oft~e type specified specified Works and Public Works of the condition at the defective condition of,a defective in Westchester Code S 780.01, and no· no' such such written written notice noticeoLa 780.01, and County-Code§ Westch~ster County . . . . . Notice of and and Bronx River River Pathway Pathway location location described described in the the attached attached Summ_ons Summ.0ns and Complaint Complaint and Notice of Bronx . December2016." tlir~ugh necember2016." 2014 through Claim has the period of January January 2014 period of withillthe recei,ved within been received has been Claim ' . constructive actual or constructive or _have create or hot create did hot In support of the claim that .have acttia:lor that it did County's _clahri the County's support-of knowledge of of the the ciaimed claimed condition, condition, it ·also also submits submits affidavits affidavits of of Peter.Tarta¥li~ Peter Tartaglia ancl and Dominick. Dominick knowledge the as the well as Conservation, as Recreation, and Maglione, employees of of the Department of Parks, andCohservation, as well Parks, Recreation, Department of Maglione, employees deposition Maglione. of Maglione. testirhol).y; of deposition testimony the of the their searches in their that in indicate that Both searches of individuals indicate Both individuals period frorri Department records, they found-no maintenance and and repair repair records records for the the period from December December ound-no maintenance Department.~ecords,.theyf . . . . the accident. to the prior to year prior 18,2014 - Le., for one one year accident. 2015 -Le., Dec~mber...18, 2015 2014 to December 18, . . . . . . - . . -~. establish failecl to establish County has failed the Countyhas In opposition that the argues_that plaintiff argues motion, plaintiff County's motion, to __the County's opposition tathe facie case case Jor for summary:jµd-gment summary judgment because because it has has not not provided provided evidence evidence to show show when when the the prima facie a prima the Tartaglia that the subject ·area area was last inspected. inspected. Plaintiff suggests that Tartaglia and and Maglione Maglione _affidavits affidavits Plaintiff suggests was last subject Additionally, last 'inspected. was last question was indicate inspected. Additionally, area in question the area when the of when records of ~e no records there are ~hat there indicate that contends that that the the lack lack of of prior is not not dispositive dispositive because because the the relied-on relied-on prior. prior, _written ·notice is prior .writtennotice she contends written notice notice law, law, sect_~on section 780.01 780.01 of of the Laws of of Westchester County, contains contains a constructive constructive Westchester County, the Laws _written notice exception. notice exception. Analysis Analysis unsafe of unsafe claims of to Claims law applicable Westchester C;ountyhas enacted a prior applicable to notice law written notice prior written has enacted Westchest~r Coqnty -conditiohs ·on on "any "any road, road, street,: street, highway, highway, bridge, bridge, culvert, culvert, sidewalk sidewalk or crosswalk" crosswalk" (see (see Laws Laws of of -conditiohs unpaved well to unpaved apply as well that suchlaws held that been held has been Westchester County S 780.0l).· 780.01). Notably, such laws apply Notably, it has West_chester County§ Dept 2011 ]), ADjd 1047 Bay (82 ADjd areas alongside alongside walkways; Townofof Oyster Oyster Bay 1047 [2d [2d Dept D, Holmes v Town in· Holmes walkways; in areas ran where the the plaintiff plaintiff allegedly allegedly tripped tripped on a·tree a tree stump stump iita in a tree tree well well in a.utility a utility strip strip which which ran parallel parallel where . . . . was outside which she fell Was the area to. a sidewalk, sidewalk, the Court rejected contention that that the area .in which outside ...~ contention plaintiffs the plaint~ffs reJe~ted. the the· Court . \ law (id. at 1048) notice law the purview 1048)... written notice prior written Town's prior the Town's of the purview of 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 12/13/2019 10:53 AM NYSCEF DOC. NO. 43 INDEX NO. 69456/2016 RECEIVED NYSCEF: 12/12/2019 prior written "Where, as here; here, a municipality municipality has has enacted enacted a prior written notice notice law, law, it cannot cannot be ·held held ''Where, requirement" (Holmes that requirement" liable absent absent proof of the exception to that (Holmes v Town Town of of notice or an exception requisite notice the requisite proof of liable Oyster Bay, AD3d _1047, 1047, 1048 [2d Dept_ Dept20J 1] [citation [citation omitted]). omitted]). Proof Proof that that a search search of of the 2011] Bay, 82 AD3d Oyster prior to the relevant records records was was conducted conducted covering covering a period of two two years years prior the date date of of the the accident, accident, period of relevant jj written prior written a_ lack been found and disclosed disclosed no written of the defect, defect, has found to establish establish a lack of of prior has been notice of written notice County's proof, The County's 2014]). The Dept 2014]). 656 [2d Dept notice (see Pallotta of New proof, AD3d 656 New York, 121 AD3d Pallotta v City of notice prior written despite a slight slight irregularity, irregularity, is sufficient sufficient to establish establish a lack lack of of prior written notice. notice. despite notice written notice prior written that it lacked The general general rule "[0o]nee ]nce a municipality establishes that lacked prior municipality establishes that"[ rule is that The exists fact exists of fact that a question demo~strate that of an alleged alleged defect, shifts to the plaintiff to demonstrate question of the plaintiff burden shifts the burden defect, the of as to one of of the e~ceptions exceptions to the the prior written notice notice requirement, requirement, either either that that the the municipality municipality' : prior written a area in question the area use of that_ a special affirmatively created_ created the alleged hazardous condition or that special use of the question hazardous condition the alleged affirmatively 854 AD3d 853, Islip, 162 AD3d ofIslip, conferred special benefit Cruzate v Town Town of 853,854 municipality (see Cruzate the municipality upon the benefit upon conferred a special NY2d 471,474 Buffalo, Dept 2018] 2018] citing citing Amabile City of of Buffa 10, 93 NY2d 471,474 [1999]). [1999]). Amabile v City [2d Dept notice law written notice prior written However, County's prior law includes includes its own own Westchester County's here, Westchester However, here, "v defect alleged defect of an alleged notice of written notice prior written constructive requiring prior explicitly requiring exception, explicitly notice exception, constructive notice period ... unless unless such such defective, defective, unsafe~ unsafe', dangerous dangerous or obstructed obstructed condition condition existed existed for so long long a period " ... reasonable care the exercise that same should should have discovered and and remedied exercise of of reasonable care and remedied in the been discovered have been the same that the 780.01). diligence" County §S 780.01). Westchester County of Westchester Laws of diligence" (see Laws notice constructive notice that constructive on that Based on Based exception built into the the law, proof introduced by the County County establishing establishing a lack lack of of prior prior written written by the proof introduced built into exception judgment notice insufficient to entitle entitle it to summary summary judgment. To be entitled entitled to summary summary judgment judgment. To notice is insufficient have not have did not that it did facie showing prirna facie disrriis~ing showing that present a prima must present County must the County complaint, the the complaint, dismis~ing the constructive notice notice of of the the alleged alleged unsafe unsafe condition. condition. constructive the defendant notice, the "To meet facie burden issue of of lack lack of of constructive constructive notice, defendant the issue burden on the prima facie meet its prima "To relative to inspected relative or inspected cleaned or last cleaned was last must some evidence evidence as to when question was area in question the area when the offer some must offer '660, 661 [2d LP, 157 AD3d Plains Galleria, time when when the the plaintiff plaintiff fell" fell" (Hanney (Hanney v White Plains Galleria, LP, AD3d660, the time Maglione, and 2018]). The The submitted submitted affidavits affidavits by Tartaglia and and Maglione, and Maglione's Maglione's deposition deposition by Tartaglia D~pt 2018]). prior to year prior records for one repair records testimony, found no maintenance and repair one year maintenance and they found that they merely that indicate merely testimony, indicate accident. They They do not not establish establish a lack lack of of constructive constructive notice notice of of the the presence presence of of the the allegedly allegedly the accident. the area when the dangerous tree observes, the submissions do·Iiot do riot establish establish when area in the submissions plaintiff observes, remnant. As plaintiff tree remnant. dangerous checked. question inspected or checked. last inspected was last question was 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 12/13/2019 10:53 AM NYSCEF DOC. NO. 43 INDEX NO. 69456/2016 RECEIVED NYSCEF: 12/12/2019 Nor did defendant burden of property owner Nor defendant satisfy satisfy the initial initial burden of any property owner seeking seeking summary summary judgment dismissing trip-and-fall complaint, prirria facie facie showing judgment dismissing a trip-and-fall complaint, of of "making "making a prima showing that that it neither neither created hazardous condition nor had had actual notice of of its existence created the hazardous condition nor actual or constructive constructive notice existence for a sufficient sufficient length of time to discover Maloney v Farris, Farris, 117 AD3d AD3d 916, 916 [2d Dept length of time discover and remedy remedy it (see Maloney Dept failed to establish remnant behind, behind, nor 2014]). 2014]). It failed establish that that it neither neither cut down down a tree and and left a remnant nor had constructive the remnant's remnant's existence. constructive notice notice of of the existence. Based upon the foregoing, hereby, Based upon foregoing, it is hereby, ORDERED that that the motion motion of of defendant defendant for summary summary judgment denied; and it is further judgment is denied; further ORDERED ORDERED that all parties parties shall 2020 at 9:15 a.m. in the ORDERED that shall appear appear on Tuesday, Tuesday, January January 14, 14,2020 located at 111 Dr. Martin Settlement Settlement Conference Conference Part Part of of the Westchester Westchester Supreme Supreme Court, Court, located Martin Luther Luther King Jr. Boulevard, Boulevard, White New York trial. King White Plains, Plains, New York 10601 to schedule schedule a trial. This the Decision This constitutes constitutes the Decision and Order Order of of the Court. Court. Dated: White Plains, New York York Dated: White Plains, New December 1Z.,2019 December / Z-, 2019 ~~~ ~ ~~~ HaN. 4 [* 4] 4 of 4 ~N E RUDERMAN, RUDERMAN, J.S.C. RRY JANE J.S.C.

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