Attwood v. The Cnty. of Westchester

2020 NY Slip Op 34800(U)

DAWN ATTWOOD, Plaintiff, v. THE COUNTY OF WESTCHESTER, CITY OF NEW ROCHELLE and RAYMOND JONES, Defendants.

Motion Seqs. Nos. 5, 6, 7

Index No. 67642/2018

Supreme Court, Westchester County

May 18, 2020

Unpublished Opinion

DECISION & ORDER ON SUMMARY JUDGMENT MOTIONS

JAMES W. HUBERT, J.S.C.

The following papers were read on Motion Sequence 5, a motion filed by Defendant City of New Rochelle ("the City") seeking an Order pursuant to CPLR § 3212 granting summary judgment dismissing Plaintiff's complaint and all cross-claims asserted against it:

Notice of Motion - Affirmation in Support - Exhibits A-I Memorandum of Law in Support Affirmation in Opposition (Owens) - Affidavit of Service Affirmation in Reply (Powers) - Exhibits J-M NYSCEF File

The following papers were read on Motion Sequence 6, a motion filed by Plaintiff seeking an Order precluding the City from asserting as a defense that it did not cause or create the dangerous condition at issue, and for sanctions against the City for the spoliation of evidence:

Notice of Cross-Motion - Affirmation in Support - Exhibits A-G - Affidavit of Service -Affirmation in Opposition (Powers) NYSCEF File

The following papers were read on Motion Sequence 7, a cross-motion filed by Defendant Raymond Jones i/s/h/a Raymond James ("Jones") for an Order pursuant to CPLR § 3212 granting summary judgment dismissing Plaintiff's complaint and all cross-claims asserted against him; denying the City's motion for summary judgment; precluding the City from asserting as a defense that it did not cause or create the dangerous condition at issue; and for sanctions against the City for the spoliation of evidence:

Notice of Cross-Motion - Affirmation in Support & in Opposition to City of New Rochelle's motion for SJ (Greisman)- Exhibits A-H

Affirmation in Opposition (Owens) - Affidavit of Service

Affirmation in Opposition (Powers) NYSCEF File

Upon the foregoing papers, the motions are disposed of as follows:

Background

This action was commenced by Plaintiff Dawn Attwood to recover damages for personal injuries she allegedly sustained on July 23, 2017. Plaintiff alleges that she was out jogging on that date when she tripped on a metal spike protruding from a small grassy area adjacent to the sidewalk along Webster Avenue near Whitfield Terrace in New Rochelle, New York. Plaintiff states that after tripping over the spike, she fell onto the sidewalk and was unable to get up. A pedestrian assisted her and called 911. Plaintiff was transported by ambulance to the hospital, where she was treated for injuries to her right elbow and hand.

Plaintiff filed a Notice of Claim, which the City received on or about October 17, 2017. Upon receiving the notice, John O'Keefe, the City's Manager of Streets and Highways went to inspect the location where Plaintiff allegedly fell and found "what appeared to be a spike and old anchor" protruding several inches from the ground. O'Keefe took a photograph of the metal spike and directed a City employee to come to the location to remove it. At some point thereafter, the City discarded the spike, before the parties had an opportunity to inspect or examine it. However Plaintiff preserved photographs of the metal spike taken at the time of her accident. These photographs, attached to her notice of claim, depict a utility pole at the very corner of the subject property; a sign reading "No Standing at any Time" along Webster Avenue near the corner; a solid, metal rod in the grassy area along Webster Avenue protruding from the ground; and cables attached to a utility pole that are anchored to the ground along Whitfield Terrace.

Plaintiff commenced this action on October 19, 2018, against the County of Westchester, the City of New Rochelle, and Raymond Jones, the owner of the property where Plaintiff allegedly fell. The complaint alleges that Defendants were negligent in failing to maintain the sidewalk apron abutting the public sidewalk adjacent to 668 Webster Avenue area in a reasonably safe condition and creating and/or allowing a dangerous and defective condition to exist, and failing to properly remove and/or repair the dangerous condition or place warnings in the area.

Issue was joined by the service of a verified answer by Defendant Jones on December 11, 2018. The City filed its answer on May 8, 2019. By Decision & Order dated May 6, 2019, the Hon. John P. Colangelo dismissed all claims against the County of Westchester. The parties subsequently filed non-substantive motions, and the instant summary judgment motions followed.

The standard for granting summary judgment is well established. In order to make a prima facie showing of entitlement to judgment as a matter of law, the moving party must tender sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 (1986). The parties' competing contentions must be viewed in a light most favorable to the non-moving party. De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468 (2016). If the moving party meets its burden, the burden shifts to the nonmoving party to establish, through admissible evidence, that there are disputed issues of material facts for trial. CPLR § 3212 (b); Zuckerman v. New York, 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595 (1980). The non-moving party must produce evidence in the record and may not rely on conclusory statements or contentions that are not credible. However, if the moving party fails to sustain its burden, the court need not address the adequacy or sufficiency of the opposing party's proof. Grant v. 132 W. 125 Co., LLC, 180 A.D.3d 1005, 2020 N.Y. Slip. Op. 01328 (2d Dep't 2020).

In Motion Sequence No. 5, the City moves for summary judgment dismissing the complaint and any cross-claims asserted against it on the grounds that it lacked prior written notice of the dangerous condition that allegedly caused Plaintiff to fall.

The law requires all municipalities to maintain their streets in a reasonably safe condition. However, since municipalities are not aware of every dangerous condition on public streets and walkways, the law imposes liability only for those defects or hazardous conditions of which the municipality has actual knowledge. San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111, 919 N.Y.S.2d 459 (2010).

Accordingly, where a municipality has enacted a prior written notice law, it generally cannot be held liable for injuries caused by a dangerous condition or defect which comes within the ambit of the law unless it has received prior written notice of the defect. See Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77 (1999)(post from missing stop sign raised above sidewalk encompassed by Buffalo's prior written notice law); Poirier v. City of Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555 (1995)(signpost anchor protruding above sidewalk constituted an obstructed condition requiring prior written notice in negligence action against the city); Murphy v. Brown, 178 A.D.3d 832, 111 N.Y.S.3d 869 (2d Dep't 2019).

Prior written notice statutes are strictly construed. The requirement of prior written notice is not a procedural requirement, or an affirmative defense, but a substantive element of a plaintiff's cause of action. Cipriano v. City of New York, 96 A.D.2d 817, 465 N.Y.S.2d 564 (2d Dep't 1983). There are only two exceptions to a statutory rule requiring prior written notice: (1) where the municipality created the defect or hazard through an affirmative act of negligence; or (2) where a "special use" confers a special benefit upon the locality. Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77; Oboler v. City of New York, 8 N.Y.3d 888, 832 N.Y.S.2d 871 (2007). Thus, where a municipality demonstrates that it lacked prior written notice, the burden generally shifts to the plaintiff to demonstrate the applicability of one of these exceptions. Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261 (2008)(citation omitted).

Additionally, "the affirmative negligence exception . . . is limited to work by the City that immediately results in the existence of a dangerous condition." Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871 (2007), citing Bielicki v. City of New York, 14 A.D.3d 301 (1st Dep't 2005); see also Hanley v. City of New York, 139 A.D.3d 800, 32 N.Y.S.3d 261 (2d Dep't 2016). This extends to situations where "a hazard was foreseeable, insofar as the municipality created it by, for example, digging an unmarked ditch in a road or neglecting to cover a street drain." San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111, 117, 919 N.Y.S.2d 459 (2010).

Here, the City argues that summary judgment is warranted because it lacked prior written notice of the metal spike that allegedly caused Plaintiff to trip and fall, as required by Article XII, Section l27A, of the New Rochelle City Charter. That section provides that:

No civil action shall be maintained against the city for damages or injuries to person or property sustained in consequence of any street, highway, trees, bridge, culvert, sanitary sewer or storm drains, sidewalk or crosswalk or any other public place being defective, out of repair, unsafe, dangerous or obstructed, or in consequence of the existence of snow or ice thereon, unless written notice thereof, specifying the particular place, had actually been given to the Commissioner of Public Works prior to the happening of the event causing such damage or injury to person or property, and there was a failure or neglect by the city to repair or remove the defect, danger or obstruction or to cause the snow or ice to be removed or the specified place to be made reasonably safe within a

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