Celli v Orange Rockland Util., Inc.

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Celli v Orange Rockland Util., Inc. 2020 NY Slip Op 34645(U) October 30, 2020 Supreme Court, Rockland County Docket Number: Index No. 034854/2017 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: 1] ROCKLAND COUNTY CLERK 11/02/2020 01:57 PM NYSCEF DOC. NO. 82 INDEX NO. 034854/2017 RECEIVED NYSCEF: 11/02/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------------x FRANK J. CELLI, JR., Plaintiff, DECISION AND ORDER (Motion #1) -againstIndex No.: 034854/2017 ORANGE AND ROCKLAND UTILITIES, INC. Defendants. ------------------------------------------------------------------x Sherri L. Eisenpress, A.J.S.C. The following papers, numbered 1 to 6, were considered in connection with Defendant Orange and Rockland Utilities, Inc.'s ("O & R") Notice of Motion, pursuant to Civil Practice Law and Rules § 3212, granting summary judgment and dismissal of the Complaint against it: NUMBQ;ED PAPERS NOTICE OF MOTION/AFFIRMATION IN SUPPORT/AFFIDAVIT OF DANIEL PERETTI/EXHIBITS A-J 1- 3 AFFIRMATION IN OPPOSITION/AFFIDAVIT OF WAYNE T. BALLARD/ EXHIBITS A-BB 6 AFFIRMATION IN REPLY/EXHIBITS A-E Upon the foregoing papers, the Court now rules as follows: The above captioned action seeks to recover for serious personal injuries sustained by the Plaintiff, Frank J. Celli Jr., on July 10, 2015, when the motorcycle he was riding struck broken-up uneven asphalt on west-bound Route 59, in Clarkstown, New York. An action was commenced on October 5, 2017, and issue was joined as to Defendant O & R by service of an Answer on November 27, 2017. After the completion of discovery, and the filing of a Note of Issue on January 16, 2020, Defendant timely filed its summary judgment motion. The Court notes that a companion action arising from the same incident was filed against the State of New York in the Court of Claims. 1 1 of 9 [*FILED: 2] ROCKLAND COUNTY CLERK 11/02/2020 01:57 PM INDEX NO. 034854/2017 NYSCEF DOC. NO. 82 RECEIVED NYSCEF: 11/02/2020 Testim ony 2015, a clear Plaintif f Celli testifie d that his accide nt occurre d on July 10, of Rt. 59, in the Town of evenin g, as he rode his motorc ycle in the far-righ t westbo und lane on a curve in the roadwa y, Clarkst own. As he travele d approx imately 30-35 miles per hour, uneven pavem ent in the the front tire of his motorc ycle made contac t with pothole s and rest approx imately 25 feet roadwa y, causing him to fly over the handle bars and to come to to contac t. Therea fter, a away on the roadwa y. Mr. Celli did not observ e the pothole s prior him, got out of her car woman named Desiree Salerno , who was driving immed iately behind to Nyack Hospita l. At his and came to his aid, EMS arrived , and Mr. Celli was transpo rted Court of Claims deposi tion, Plaintif f identifi ed photog raphs taken of the roadwa y tely depicti ng the conditi on approx imately one month after the accide nt as fairly and accura of the roadwa y at the time of the inciden t. examin ation Eyewit ness, Desiree Salern o, testifie d as a non-pa rty witness at an witness ed Plaintif f's acciden t before trial in the Court of Claims action. She testifie d that she und lane. The acciden t as she travelle d behind Plaintif f's motorc ycle in the right westbo . Ms. Salerno marked a occurre d on a bend in the road where a large pothole was located ed as being two feet wide photog raph depicti ng the locatio n of the pothole , which she describ came into contac t with the by two feet long. She testifie d that when Plaintif f's motorc ycle to the right and the back of pothole , she observ ed the steerin g wheel of the motorc ycle go off. the bike swerve d out to the left, at which time Mr. Celli was thrown depart ment of Defend ant O & R produc ed Daniel Peretti , manag er of the law claims involvin g Defend ant Con-Ed 1 , whose duties include the investi gation of acciden ts and 59, near its interse ction 0 & R. Mr. Celli testifie d that O & R perform ed gas work on Route . In August 2012, 0 & with Broom e Boulev ard, where gas valves and gas main were located gas main which include d R perform ed work related to the elimina tion of gas leaks on the steel shares of O & R which became a wholly Consolidated Edison Company of New York ("Con Ed") purchased all owned subsidiary of Con Ed. 1 2 2 of 9 [*FILED: 3] ROCKLAND COUNTY CLERK 11/02/2020 01:57 PM NYSCEF DOC. NO. 82 INDEX NO. 034854/2017 RECEIVED NYSCEF: 11/02/2020 replace ment with plastic so the cut out of approx imately forty ( 40) feet of gas main and the such work, a forty (40) as to elimina te corrosi on leaks on the steel main. In order to perform 59, and after the work was foot long trench was dug in the right westbo und lane of Rt. comple ted, the area was restore d back to asphal t. involve d the In July 2013, a larger job was undert aken in the area which work began on the wester n retirem ent of approx imately one thousa nd feet of gas main. This n. To perform this work, O & most end of the 2012 work and procee ded in a wester ly directio is embed ded in sand, rock R dug two (2) four by eight feet ( 4 x 8) trenche s. The plastic main grade, and then final asphal t aggreg ate is compa cted to within eight or nine inches of the final tion date of August 12, is put down, withou t milling , Work records show a project comple 2015, a date post-ac cident. on state At his deposi tion, Mr. Peretti testifie d that O & R never makes repairs conditi on on the roadwa y. roads, even if it is their facilitie s which are the cause of a danger ous the New York Depart ment of He further conten ded that O & R never receive d any notice from nt or the conditi on of the Transp ortatio n ("DOT" ) regard ing the area of Plaintif f's accide pavem ent surface prior to the acciden t. He did, howeve r, confirm that O & R perform ed but did not know why they paving work in the subjec t area after the accide nt in August 2015, perform ed this work. 2 ski, employ ed Plaintif f also submit s the deposi tion testimo ny of James Muraw tion with the Court of Claims by the DOT as an Assista nt Reside nt Engine er, taken in connec of the DOT, mainte nance of action. Mr. Muraw ski's duties include overse eing the operati ons ys in Rockla nd County . He roads, work zones, safety and compla ints regard ing State highwa riding surface , Mr. Muraw ski testifie d that in June 2015, in respon se to compla ints of a rough t patche s from the work went to the site and observ ed that the pavem ent had multipl e asphal joint repair work in the area. of both O & R and DOT, so he reache d out to O & R to schedu le depict the general area of the accident The Court notes that several photographs were marked as exhibits which of the road . and which show O & R workers and company vehicles parked on the side 2 3 3 of 9 [*FILED: 4] ROCKLAND COUNTY CLERK 11/02/2020 01:57 PM NYSCEF DOC. NO. 82 INDEX NO. 034854/2017 RECEIVED NYSCEF: 11/02/2020 DOT crews did temporary patching work to make the road surface better. The notification to 0 & R regarding the condition of the roadway in the area of Plaintiff's accident took place prior to Plaintiff's accident. Mr. Murawski further testified that this work was necessitated by the sinking of an O & R gas valve which caused the pavement level to compact. Mr. Murawski determined that O & R was required to do certain work to repair the area of the trench/utility cut. This would involve O & R milling out the asphalt around its valve; excavation of the area; application of new subbase which would then be recompacted to be stronger and not settle; placement of proper asphalt lifts; and putting down a subbase, a medium course and then a riding course. Mr. Murawski testified that O & R would fix their area and DOT would fix anything that was not part of O & R's area. Final repairs, including some made by O & R, were made in July or early August 2015. The Parties' Contentions Defendant O & R moves for summary judgment and argues that there is no evidence that O & Rowed any duty of care to Plaintiff. It asserts that the limited excavations undertaken in 2012 and 2013 were performed pursuant to a permit issued by DOT and that O & R fully complied with the requirements of the permit and an assistant resident DOT engineer approved the work. Relying upon the case of Espinal v. Melville Snow Contractors, Inc, 98 N.Y.2d 136, 746 N.Y.S.2d 120 (2002), Defendant asserts that no duty was owed to plaintiff who was not a party to the contract and none of the exceptions are applicable. It further contends that it had no obligation to conduct inspections after the work and that there is no evidence that it failed to exercise reasonable care in the performance of its duties. Other arguments asserted by Defendant are that the State of New York has a non-delegable duty to maintain the state highways; the superseding intervening acts of the NYS DOT completely relieve O & R of any potential liability because they inspected the sites after the work was performed; there was no notice of a dangerous or defective condition; and 4 4 of 9 [*FILED: 5] ROCKLAND COUNTY CLERK 11/02/2020 01:57 PM NYSCEF DOC. NO. 82 INDEX NO. 034854/2017 RECEIVED NYSCEF: 11/02/2020 Plaintiff's failure to identify the cause of his accident is fatal to his claim because he did not see the road conditions beforehand. In opposition to O & R's motion, Plaintiff contends that Defendant has failed to satisfy its prima facie showing that there are no triable issues of fact as to its negligence. He notes that a contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk . Here, Defendant made no showing that it did not create a dangerous condition . Additionally, Plaintiff argues that a triable issue of fact exists as to Defendant's negligence, which requires the denial of summary judgment. In support of this contention, Plaintiff submits the expert affidavit of Wayne Ballard, P.E. In his affidavit, Mr. Ballard opines that O & R's failure to perform a proper restoration of the roadway created and resulted in the dangerous and defective condition which caused Plaintiff's accident. More specifically, Mr. Ballard avers that the jagged edges around O & R's restoration work reflects an improper restoration resulting in voids within the joint that allowed the joint to open up, permitting water to infiltrate the road and subjecting the road to the freeze/thaw cycles resulting in a heaved and depressed road surface. Additionally, he contends that the photographs show evidence of a failure to extend the removal of the top layer beyond the excavation area by milling the road and using tack coat prior to repaving the work area to bond the binder of the existing road to the new top layer. Plaintiff also argues that James Murawski's testimony raises triable issues of fact, including that he provided to O & R actual notice of the dangerous and defective conditions at issue prior to Plaintiff's accident. As to the O & R's claim that it is not liable to Plaintiff under the standard set forth in Espinal, Plaintiff argues that affirmative acts of negligence fall within one of the exceptions. With respect to the claim that the State owes a non-delegable duty to maintain the roads, Plaintiff contends that this does not abrogate O & R's liability for its affirmative negligence in creating a dangerous condition . Plaintiff further argues that any acts by the State in restoring the roadway do not constitute an intervening act, as such actions are a 5 5 of 9 [*FILED: 6] ROCKLAND COUNTY CLERK 11/02/2020 01:57 PM NYSCEF DOC. NO. 82 INDEX NO. 034854/2017 RECEIVED NYSCEF: 11/02/2020 ly restore the subjec t area. foresee able and normal conseq uence of O & R's failure to proper the accide nt does not mean Lastly, Plaintif f argues that his failure to observ e the defect before ds that eviden ce includin g that he cannot identify the cause of the acciden t. He conten Salerno who witness ed photog raphs of the accide nt site, as well as the testimo ny by Desiree the accide nt, demon strate triable issues of fact as to causat ion. Legal Discus sion or her claim The propon ent of a summa ry judgm ent motion must establi sh his its favor as a matter of law, or defens e sufficie nt to warran t a court directin g judgm ent in l issues of fact. Giuffrid a v. tender ing sufficie nt eviden ce to demon strate the lack of materia , citing Alvarez v. Prospe ct Citiban k Corp .• et al., 100 N.Y.2d 72, 760 N.Y.S.2 d 397 (2003) do so require s a denial of the Hosp., 68 N.Y.2d 320, 508 N.Y.S.2 d 923 (1986) . The failure to Lacagn ino v. Gonzal ez, 306 motion withou t regard to the sufficie ncy of the opposi ng papers . A.D.2d 250, 760 N.Y.S.2 d 533 (2d Dept. 2003). to the party Howev er, once such a showin g has been made, the burden shifts form demon strating materia l opposi ng the motion to produc e eviden tiary proof in admiss ible questio ns of fact requirin g trial. Gonzal ez v. 98 Mag Leasing Corp .. 95 N.Y.2d 124, 711 York Univ. Med. Center , 64 N.Y.S.2 d 131 (2000) , citing Alvarez , supra, and Winegr ad v. New N.Y.2d 851, 508 N.Y.S.2 d 923 (1985) . Mere conclus ions or unsubs tantiate d allegat ions triable issue. Gilbert Frank unsupp orted by compe tent eviden ce are insuffic ient to raise a ; Zucker man v. City of New Corp. v. Federa l Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2 d 793 (1988) in determ ining a motion for York, 49 N .Y.2d 557, 427 N.Y.S.2 d 595 (1980) . Additio nally, favorab le to the nonmo vant. summa ry judgm ent, eviden ce must be viewed in the light most Dept. 2009). Pearson v. Dix McBrid e, LLC, 63 A.D.3d 895, 883 N.Y.S.2 d 53 (2d part of the As a genera l rule, a contrac t does not give rise to a duty on the to third-p ersons not privy to contrac tor, to use reason able care to preven t foresee able harm 746 N.Y.S.2 d 120 (2002) ; the contrac t. Espina l v. Melville Snow Contra s., 98 N.Y.2d 136, (2d Dept. 2007). Howev er, Roach v. AVR Realty Compa ny. 41 A.D.3d 821, 639 N.Y.S.2 d 173 6 6 of 9 [*FILED: 7] ROCKLAND COUNTY CLERK 11/02/2020 01:57 PM NYSCEF DOC. NO. 82 INDEX NO. 034854/2017 RECEIVED NYSCEF: 11/02/2020 there are three exceptions to that general rule: (1) where the contractor failed to use reasonable care in the performance of its duties, thereby launching a force or instrument of harm; (2) where the plaintiff detrimentally relies upon the continued performance of the contractor's duties; or (3) where the contractor displaced the property owner's duty to maintain the premises in a reasonably safe condition. IQ.. With regard to the first exception, a contractor may be liable for an affirmative act of negligence which results in the creation of a dangerous condition. Losito v. City of New York, 38 A.D.3d 854, 855, 833 N.Y.S.2d 564 (2d Dept. 2007); Espinal v. Melville Snow Contras., 98 N.Y.2d 136, 746 N.Y.S.2d 120 (2002). Moreover, the law is clear that a contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk. Brown v. Welsbach Corporation, 301 N.Y.202, 205 (1950); Schwartz v. Orange and Rockland Utilities, Inc., 93 A.D.3d 776, 940 N.Y.S.2d 320 (2d Dept. 2012). "On a motion for summary judgment, such a defendant may sustain its burden by establishing that it did not perform any work on the portion of the roadway where the accident occurred or that it did not otherwise create the allegedly defective condition which caused the plaintiff's injuries." Malayeva v. City of New York, 180 A.D.3d 888, 889, 116 N.Y.S.3d 588 (2d Dept. 2020). In the instant matter, the Court finds that Defendant has failed to meet its prima facie burden on summary judgment, and accordingly, the motion is denied. In his Verified Bill of Particulars, Plaintiff claims that Defendant affirmatively created the dangerous and defective conditions at issue. Notwithstand ing such claim, Defendant made no prima facie showing by expert affidavit or otherwise that it did not create a dangerous condition on the roadway as a result of the restoration work in 2012 and 2013, and did not eliminate all issues of fact that the accident did not occur in the area of the restoration work. Even if Defendant had met its burden, summary judgment must be denied as Plaintiff has established a triable issues of fact. Mr. Murawski testified that he gave prior notice to o & R of a dangerous and/or defective condition in the location of its restoration 7 7 of 9 work prior [*FILED: 8] ROCKLAND COUNTY CLERK 11/02/2020 01:57 PM NYSCEF DOC. NO. 82 INDEX NO. 034854/2017 RECEIVED NYSCEF: 11/02/2020 to the subject accident. Additionally, although O & R takes the position that it was not their responsibility to undertake any repairs on the street, Mr. Murawski testified that O & R was responsible . Moreover, while evidence of subsequent repairs and remedial measures is ordinally not admissible in a negligence case, it can be introduced where an issue exists as to the identity of the entity responsible for maintenance. Soto v. CBS Corp., 157 A.D.3d 740, 69 N.Y.S.3d 61 (2d Dept. 2018); Klatz v. Armor Elevator Co., Inc., 93 A.D.2d 633, 462 N.Y.S.2d 677 (2d Dept. 1983). Here, 0 & R's post-accident repairs, as evidenced by the photographs, raise issues of fact as to whether it had control of the subject area and was responsible for repairing the alleged defective condition . Furthermore, Plaintiff through the expert affidavit of Mr. Ballard, has demonstrated triable issues of fact as to whether the restoration work in 2012 and/or 2013 was negligently performed such that it affirmatively created the dangerous condition alleged to have caused the accident. Nor is there merit to Defendant's argument that summary judgment must be granted because Plaintiff is unable to identify the cause of his accident. A plaintiff with no recollection of an accident or who cannot testify exactly as to how an accident occurred, can establish negligence wholly through circumstantial evidence. Timmins v. Benjamin, 77 A.D.3d 1254, 1256, 910 N.Y.S.2d 584 (3d Dept. 2010); Patrikis v. Arniotis, 129 A.D.3d 928, 12 N.Y.S.3d 174 (2d Dept. 2015) . A case of negligence based wholly on circumstantial evidence may be established if the plaintiffs "show facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred." Seelinqer v . Town of Middletown, 79 A.D.3d 1227, 1229, 913 N.Y.S.2d 376 (3d Dept. 2010). Here, Plaintiff was able to say how his accident occurred notwithstanding the fact that he did not see the potholes before his fall. Additionally, the testimony of Ms. Salerno, who was an eyewitness to the subject occurrence, raises triable issues of fact as to the cause of Plaintiff's accident. Lastly, the Court finds no merit to Defendant's arguments that it cannot 8 8 of 9 [*FILED: 9] ROCKLAND COUNTY CLERK 11/02/2020 01:57 PM NYSCEF DOC. NO. 82 INDEX NO. 034854/2017 RECEIVED NYSCEF: 11/02/2020 be liable to Plaintiff due to the State's non-delegable duty to maintain the roadways or that the State's actions constitute a superseding cause of the occurrence . Accordingly, it is hereby ORDERED that the Notice of Motion filed by Defendant Orange & Rockland Utilities Inc. for summary judgment and dismissal of the Complaint (Motion #1) is DENIED in its entirety; and it is further ORDERED that the parties are directed to appear for a settlement conference on JANUARY 6, 2021, at 10:20 a.m via Microsoft Teams. Link to be provided the day prior to the conference. The foregoing constitutes the Decision and Order of this Court on Motion #1 Dated : New City, New York October 30, 2020 TO: All Parties via -NYSCEF- 9 9 of 9

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