Vaisman v Village of Croton-on-Hudson

[*1] Vaisman v Village of Croton-on-Hudson 2020 NY Slip Op 50676(U) Decided on June 15, 2020 Supreme Court, Westchester County Giacomo, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2020
Supreme Court, Westchester County

Mauro Vaisman and JODY VAISMAN, Plaintiffs,

against

The Village of Croton-on-Hudson, DENNIS J. WILLETTE, JR. and ANAMIKA BHATNAGAR, Defendants.



50181/2020



Attorneys for Defendant Village of Croton-On-Hudson

Morris Duffy Alonso & Faley

Attorneys for Plaintiffs

Braverman Greenspun, P.C.

Attorneys for Defendants Dennis J. Willette and Anamika Bhatnagar

White, Werbel & Fino, LLP.
William J. Giacomo, J.

In an action to recover damages for personal injuries, etc., the defendant The Village of Croton-On-Hudson moves for summary judgment dismissing the complaint pursuant to CPLR 3212:

Papers ConsideredNYSCEF Doc. No. 8-14; 17-22; 24-35

Notice of Motion/Affirmation of Frank H. Foster, Esq./Exhibits A-D;

Affirmation of Jon Kolbrener, Esq. in Opposition/Exhibits 1-4;

Affirmation of Nathan Losman, Esq. in Opposition/Affidavit of Dennis J. Willette, Jr./Exhibits A-G;

Reply Affirmation of Frank H. Foster, Esq.;

Reply Affirmation of Frank H. Foster, Esq.[FN1]

Factual and Procedural Background

Plaintiff Mauro Vaisman allegedly sustained personal injuries on April 13, 2019, when he tripped and fell on a public sidewalk adjacent to the premises located at 80 Cleveland Drive, Croton-on-Hudson. Plaintiff tripped and fell on an elevated sidewalk flag that was raised approximately five inches.

Plaintiff and his spouse commenced this action against The Village of Croton-On-Hudson with the service of a notice of claim and the filing of a summons and complaint, and against the adjacent property owners Dennis J. Willette, Jr. and Anamika Bhatnagar. The defendants joined Issue with the service of their separate answers.

The Village moves for summary judgment dismissing the complaint, pursuant to CPLR § 3212, on the grounds that there is no evidence that it had prior written notice of the defective sidewalk condition that caused plaintiff's accident and it did not affirmatively create the condition. The defendant relies upon Village Law § 6-628 and Croton-On-Hudson Village Code § 197-28 which provide that no civil action shall be maintained against the Village for personal injuries as a result of a dangerous or defective condition on a sidewalk unless written notice of the defective condition was actually given to the Village Clerk and there was a failure or neglect within a reasonable time after receipt of such notice to repair or remove the defect.

In support of its motion, the Village submits an affidavit of Pauline DiSanto, the Village Clerk for thirteen years. DiSanto attests that her duties include maintaining all prior written complaints as to roadways, sidewalks, culverts, and parking lots owned by the Village and all notices of claim. DiSanto personally conducted a search for any prior written notice of complaints related to 80 Cleveland Drive over a twenty-year period. DiSanto confirms that the Village Clerk's office did not receive prior written notice of the allegedly defective sidewalk condition that caused plaintiff's accident.

The Village argues that without prior written notice, plaintiffs can only prove liability against it by demonstrating that the Village created the defective condition through an affirmative act of negligence.

In support of this argument, the Village submits an affidavit of Daniel O'Connor, the[*2]Village Engineer and Building Inspector since 2002. O'Connor's duties include supervising the sidewalk replacement program within the Village to ensure that all sidewalks replaced under the program were properly installed. O'Connor conducted a search of the records for work that was performed in the Village on sidewalks for nineteen years prior to the date of plaintiff's accident. The records are stored in files in his office and electronically. His search revealed that work was performed on the sidewalk adjacent to 80 Cleveland Drive in 2006. At that time, the Village hired a company to replace the entire sidewalk in the area. According to O'Connor, the Village would have inspected the sidewalk throughout the replacement process and any defects would have been addressed and corrected. O'Connor's search did not reveal any other work performed on the sidewalk in the area where plaintiff's accident occurred.

The homeowners, Willette and Bhatnagar, oppose the motion arguing that the Village did have prior written notice of the defect and that issues of fact exist as to whether the Village caused and created the alleged defect.

Willette submits an affidavit attesting that the injured plaintiff, his neighbor, allegedly slipped and fell on the sidewalk in front of his home. Willette states that by 2015 the Village was aware that there were many public sidewalks in the village that were mis-leveled from village owned trees. As a result, the Village enacted a Sidewalk Improvement Project commencing October 1, 2015, and running for five years. The Village agreed that it would share fifty percent of the cost with the homeowners for the repair of public sidewalks damaged by village trees.

On August 29, 2016, Willette submitted to the Village an application to repair the sidewalk in front of his home on behalf of himself and his wife, Bhatnagar. Willette submitted the application because the sidewalk in front of their home was damaged by a village tree.

Willette attaches a copy of the application to his affidavit which is stamped received by the Village on August 29, 2016. The pre-printed application form sets forth the following procedures to be followed by the Village upon receipt of an application from a homeowner: The Village will conduct a site visit to determine if a village owned tree contributed to the cause of the damaged sidewalk; upon determination, the Village will authorize and pay for the removal of the tree if appropriate; the Village Engineer determines the nature and extent of qualifying sidewalk repairs and will notify the applicant in writing of the contribution to be made by the property owner; after receipt of the property owner's share, the Village Engineer and DPW will arrange for the removal of the tree, if appropriate, and schedules repairs or construction with the contractor; and all work will be inspected by the Village Engineer during construction and approved by the Village Engineer before payment to the contractor.

Willette states that from the time the application was submitted in 2016, he was in communication with O'Connor, the Village Engineer, to discuss the repair. Willette states that the application was accepted and at no time did the Village dispute his eligibility to participate in the sidewalk repair project.

Willette attaches emails between himself and O'Connor which copy several other Village employees. The Village Clerk is not copied on any of the emails. In an email dated October 3, 2018, O'Connor advises Willette that the next phase of the sidewalk replacement program was scheduled for spring 2019. Willette responds to O'Connor that same day stating:

I followed up with your office yesterday regarding a Sidewalk Improvement Plan Application we submitted to the village in Q3 2016. My call was to inquire about the status of the program and any updates your office might have regarding our application. I was told that your office does have our application, but that we are not currently on the list to be addressed [*3]prior to year end 2018.

I explained that my main concern is liability — my understanding is that if anyone gets hurt as a result of the issue with the sidewalk in front of our house that its our responsibility. I know of at least one elderly neighbor who takes daily walks in our neighborhood (passing by my house) and I'm concerned for her safety due to how elevated the sidewalk has gotten over the past two years. I was asked to send photos for reference. Please see attached.

Thereafter, on March 25, 2019, Willette followed up with O'Connor and several other Village employees asking whether the sidewalk adjacent to his home was being considered for possible tree removal and repair that spring or another anticipated time frame. O'Connor responded that same day stating that he emailed the DPW the list of sidewalks to begin the repair work in phases and that since Willette's application was received in 2016 it would be prioritized over applications received thereafter.

Willette again followed up with O'Connor on April 9, 2019. (Plaintiff's accident occurred on April 13, 2019). On April 18, 2019, O'Connor responded that the sidewalk improvement work was scheduled for the spring of 2019.

Willette attests that, as evidenced by the emails, the Village fully accepted their application and eligibility for the sidewalk improvement project and was on notice of an allegedly defective condition caused by a village owned tree. Moreover, the Village was in control of the repair. Willette and Bhatnagar paid $480 to the Village in June 2019 for their portion of the sidewalk replacement and attach a receipt of payment from the Village. The Village finally removed the tree in July 2019 and repaired the sidewalk in August 2019, after the plaintiff's accident.

Plaintiffs also oppose the Village's motion arguing that the Village received prior written notice of the sidewalk defect. Plaintiffs further argue that the Village failed to demonstrate prima facie that it did not create the defective condition.

In separate replies, the Village argues that the Village Clerk never received prior written notice of the allegedly defective condition. The Village argues that plaintiffs and the homeowners have cited nothing to support the contention that the implementation of the sidewalk improvement plan overruled state and local law which requires that the Village Clerk be given actual written notice of an alleged defective condition. The Village argues that neither the alleged sidewalk application nor the email correspondence with O'Connor was provided to the Village Clerk as required under state and local law. The application was submitted directly to the Village's building department and was never sent to the Village Clerk.

The Village also argues that it established entitlement to summary judgment as it did not cause or create any defective condition. The Village argues that the only work performed on the sidewalk in question was in 2006 and there were no defective conditions present upon completion of that work.

Discussion

A party seeking summary judgment has the burden of tendering evidentiary proof in admissible form to demonstrate the absence of material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Where the moving party establishes prima facie entitlement to judgment as a matter of law, the burden then shifts to the opposing party to demonstrate that genuine issues of fact exist to preclude summary judgment (see id. at 324; Zuckerman v City of New York, 49 NY2d 557, 562-563 [1980]).

"Where, as here, a municipality has enacted a prior written notice statute, it may not be [*4]subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies" (Abreu-Lopez v Incorporated Vil. of Freeport, 142 AD3d 515, 516 (2d Dept 2016) citing Cimino v County of Nassau, 105 AD3d 883, 884 [2d Dept 2013]). "Exceptions to the prior written notice requirement have been recognized where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it" (Braver v Village of Cedarhurst, 94 AD3d 933, 934 [2d Dept 2012]; Cimino v County of Nassau, 105 AD3d at 884).

Prior written notice provisions, enacted in derogation of common law, are always strictly construed (Poirier v City of Schenectady, 85 NY2d 310, 313 [1995]).

Practically, prior written notice provisions result in limiting a locality's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location []. This comports with the reality that municipal officials are not aware of every dangerous condition on its streets and public walkways, yet imposes responsibility for repair once the municipality has been served with written notice of an obstruction or other defect, or liability for the consequences of its nonfeasance, as the case may be (Poirier v City of Schenectady, 85 NY2d at 314).

Here, although the Court finds it troubling that O'Connor's affidavit submitted in support of the Village's motion makes absolutely no mention of Willette's sidewalk improvement application, the Court finds that the Village established its prima facie entitlement to judgment as a matter of law by submitting sufficient evidence to demonstrate that the Village Clerk did not receive prior written notice of the alleged sidewalk defect or that the Village did not create the condition through an affirmative act of negligence (see Village Law 6-628; Village of Croton-on-Hudson Code 197-28; Pena v City of Yonkers, 82 AD3d 728 [2d Dep't 2011]; Lawler v City of Yonkers, 45 AD3d 813 [2d Dept 2007]).

The law is clear that complaints have been dismissed against municipalities where the designee pursuant to the applicable municipal code or statute did not receive prior written notice (see Fisher v Town of N. Hempstead, 134 AD3d 670 [2d Dept 2015] [holding that the complaint was dismissed against the Town on the grounds that it did not have prior written notice of the defective condition. The fact that the Town's Department of Public Works received certain prior written notice did not satisfy the requirement in the Town Code that prior written notice be given to either the Town Clerk or the Town Superintendent of Highways]).

Indeed, in Gorman v. Town of Huntington, 12 NY3d 275 [2009]), the injured plaintiff tripped and fell on an uneven town sidewalk. Four months prior to the accident, the adjacent landowner complained about the sidewalk to the Town Department of Engineering Services, the department responsible for town sidewalks. The Town of Huntington Code, much like the Village of Croton on Hudson Code herein, provided that written notice must be made to a particular designee, i.e. the Town Clerk or Town Superintendent of Highways. The Huntington Town Code also expressly stated that service of the notice to a person other than the Town Clerk or the Town Superintendent of Highways shall invalidate the notice.

In Gorman, the Court of Appeals found that it was undisputed that neither the Town Clerk nor the Town Superintendent of Highways received prior written notice of the defective sidewalk. The Court held that because the Department of Engineering Services is not a statutory designee, notice to that department was insufficient. The Court was not persuaded that the [*5]Department of Engineering Services' practice of recording complaints and repairs warranted a departure from precedent strictly construing prior written notice provisions. "As the entity charged with repairing town sidewalks, it is to be expected that the Department would keep a record of needed repairs and complaints but it cannot be inferred from that conduct that the Town was attempting to circumvent its own prior written notice provision" (Id. at 280).

The Court of Appeals also rejected the holding of the Appellate Division that the Town was estopped from relying on its prior written notice provision. The Court held that even assuming estoppel could serve as a third exception to excuse lack of prior written notice, there was no evidence that the plaintiffs relied on the correspondence sent by the adjacent homeowner to the Department of Engineering Services or on any alleged assurances by that Department that it would repair the condition (Id.). The Court of Appeals reversed the order of the Appellate Division and granted the Town's motion for summary judgment dismissing the complaint.

Thus, inasmuch as "it is not this Court's prerogative to overrule or disregard a precedent of the Court of Appeals" (Calcano v Rodriguez, 91 AD3d 468, 469 [1st Dept 2012]), the Court is constrained in its finding that the Village Clerk did not receive prior written notice of the alleged defect which caused plaintiff's accident.

However, the Court finds that under the circumstances of this case, the prior written notice statute and ordinances are inapplicable (see Giganti v Hempstead, 186 AD2d 627 [2d Dept 1992]). Failure to comply with the prior written notice statute is excused "when a municipality has or should have knowledge of a defective or dangerous condition because it either has inspected or is performing work upon the subject area shortly before the accident" (Giganti v Hempstead, 186 AD2d at 628 quoting Klimek v Town of Ghent, 114 AD2d 614, 615 [3d Dept 1985]). While the Court recognizes this is a very narrow exception to the prior written notice requirement, it finds under the circumstances of this case to be appropriate.

Of particular significance here is the amount of time Willette's application had been pending with the Village for the sidewalk repair. The application was received by the Village on August 29, 2016. The plaintiff's accident occurred on April 13, 2019. In the interim, Willette followed up with O'Connor on October 3, 2018; March 25, 2019; and April 9, 2019 - four days prior to plaintiff's accident, to inquire about the status of the sidewalk repair.

In his March 25, 2019 response to Willette, a mere nineteen days before plaintiff's accident, O'Connor stated that he emailed DPW the list of sidewalks so DPW could begin to schedule the sidewalk repair work in phases. O'Connor stated that Willette's application, received in 2016, would be prioritized over applications received in 2017 and 2018. He further stated that after the schedule was developed, he would let Willette know the cost of his share for the sidewalk replacement.

The procedures employed by the Village for the Sidewalk Improvement Project expressly state that the Village will conduct a site visit to determine if a village owned tree has damaged the sidewalk and the Village Engineer will determine the nature and extent of the qualifying sidewalk repairs. This procedure along with the emails between Willette and the Village Engineer, the Court finds, is acknowledgement by the Village shortly before the plaintiff's accident that the Village inspected the defect in question and determined that the sidewalk was in need of repair and that the Village would be performing such repair work forthwith. There is absolutely no contention by the Village that the defect which is the subject of Willette's application is not the same defect that allegedly caused plaintiff's accident (c.f. Yarshevitz v Town of N. Hempstead, 240 AD2d 737 [2d Dept 1997]).

Accordingly, it is

ORDERED that the motion of the defendant The Village of Croton-On-Hudson for summary judgment dismissing the complaint pursuant to CPLR 3212 is DENIED.

Counsel for all parties are directed to appear in the Preliminary Conference Part, room 811, for further proceedings, at a date and time to be provided.

White Plains, New York

June 15, 2020

________________________________________

HON. WILLIAM J. GIACOMO, J.S.C. Footnotes

Footnote 1: The Court has not considered the sur-reply of Nathan Losman, Esq.; the sur reply of Plaintiff; or the responses to the sur-replies of Frank H. Foster, Esq. (NYSCEF doc. 36-44). Permission to file a sur-reply or response was never requested from the Court and therefore, such papers are inadmissible.