Bennett v. Millbrook

2020 NY Slip Op 34662(U)

MARION BENNETT, Plaintiff, v. VILLAGE OF MILLBROOK, Defendant

Index No. 2019-50968

Supreme Court, Dutchess County

June 22, 2020

Unpublished Opinion

DECISION AND ORDER

CHRISTI J. ACKER, J.S.C.

The following papers numbered I -22 were considered in connection with the motion of Defendant Village of Millbrook (hereinafter "Defendant'') for an Order pursuant to CPLR 93212 granting said Defendant summary judgment dismissing. Plaintiff s Complaint:

Notice of Motion-Affirmation of Alana R. Bartley Esq.-Exhibits A-I-Affidavit of Sarah J. Witt-Affidavit of Robert Collocola-Memorandum of

Law in Support...............................................................................................................1-14

Affirmation in Opposition of Joel S. Finkelstein Esq.-Exhibits A-F..........................15-21

Reply Affirmation of Alana R. Bartley Esq......................................................................22

This action was commenced by Plaintiff Marion Bennett (hereinafter "Plaintiff) on or about March 7, 2019. It is alleged that on December 9, 2018, at approximately 8:30 pm, Plaintiff was injured when she tripped and fell in the driveway of the Thome Building in the Village of Millbrook. Defendant owns the Thome Building and the lot upon which it sits and maintains a public parking lot on the premises.

On a motion for summary judgment, the proponent "must-make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 852 [ 1985]; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]. In opposition, "the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact." Poon v. Nisanov, 162 A.D.3d 804, 806 [2d Dept. 2018], citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986].

The papers submitted in support of and in opposition to a summary judgment motion should be scrutinized in a light most favorable to the party opposing the motion. Dawsey v. Megerlan, 121 A.D.2d 497 [2d Dept. 1986]; Gitlin v. Chirkin, 98 A.D.3d 561 [2d Dept. 2012]. "Issue finding, rather than issue determination, is the court's function on a motion for summary judgment" Vumbico v. Estate of Wiltse, 156 A.D.3d 939, 941 [2d Dept. 2017]. Summary judgment is a drastic remedy that deprives a litigant of his or her day in court that should only be employed when there is no doubt as to the absence of triable issues. Castle point Ins. Co. v. Command Sec. Corp., 144 A.D.3d 731, 733 [2d Dept. 2016].

Discussion

The facts of Plaintiff s fall are uncontested. On the day of the accident, Plaintiff drove to the Village to attend a service at the Lyall Memorial Federated Church in Millbrook ("Lyall Church"). She parked at another church across from the Thome Building and walked from that lot through the Thome Building driveway and into the Lyall Church, where she attended a service. At approximately 8:30 pm, Plaintiff left the church to return to her car, walked across the municipal lot and onto the Thome Building driveway. As Plaintiff was walking on the driveway, she tripped and fell into a hole. At the time of the accident, the area in which she fell was dark and the pavement was dry. Because it was dark, she could not identify the nature of the hole on which she tripped, but when she returned to the location approximately two months later, she observed a grate that had sunken below the driveway level. At her 50-h hearing, Plaintiff was shown a photograph and identified a catch basin depicted therein as the location of her fall. Defendant installed the catch basin and repaved the driveway in December 2007 and, since that time, no other work has been done in that area.

Defendant moves for summary judgment, arguing that (1) any claim based upon the creation of an alleged dangerous condition is time barred; (2) that it did not have prior written notice of the condition that allegedly caused Plaintiffs fall and no exceptions to the prior written notice requirement exist; and (3) that it had no duty to install or maintain lighting at the location. In support of its motion, Defendant City submits, inter alia, the Pleadings, Plaintiffs Bill of Particulars and Supplemental Bill of Particulars, excerpts from the Plaintiffs 50-h and deposition transcripts, the affidavit of Sara 1. Witt, the Village Clerk of Defendant ("Witt Affidavit") the affidavit of Robert Collocola, the Highway Superintendent for Defendant ("Collocola Affidavit") and a photograph of the accident location.

As to its first argument, Defendant has established its prima facie entitlement to summary judgment on Plaintiffs claim based upon the negligent design and/or construction of the catch basin at issue herein. General Municipal Law S50-i(1) requires that an action against a municipality be commenced within one year and ninety days from the happening of the event upon which it is based. "The cause of action alleging faulty construction or design, whether characterized as negligence, malpractice, or breach of contract, accrued upon the date of completion of construction, not when the injury occurred or the defective condition is discovered"" Regatta Condo. Ass'n v. Vill. of Mamaroneck, 303 A.D.2d 737, 738 [2d Dept. 2003].

Through the testimony and affidavit of Robert Collocola, Defendant established that the catch basin was installed between December 13 and 18, 2007. Collocola further avers that when the 2007 work was completed, both the catch basin and the driveway were free from defects, safe for pedestrians and in good overall condition. This was also the last time that any work was performed on the catch basin and driveway of the Thome Building. As such, in order to be timely, any claim of faulty design or construction of the catch basin was required to be commenced within a year and ninety days after December 18, 2007. As the instant lawsuit was not commenced until 2019, well past this time period, Defendant has established its prima facie entitlement to summary judgment on Plaintiffs claim of negligent design and construction. As Plaintiff fails to address this argument in opposition, Defendant is entitled to summary judgment on this issue.

Defendant next argues that it is entitled to summary judgment based upon lack of prior written notice. "A municipality that has enacted a prior written notice provision 'may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies' [citations omitted]'' Seegers v. Vill. of Mineola, 161 A.D.3d 910 [2d Dept. 2018]. Further, the "'prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings'' [citation omitted]." Loghry v. Vill. of Scarsdale, 149 A.D.3d 714, 715 [2d Dept. 2017]. In the instant matter, Plaintiffs' Verified Bill of Particulars alleges, inter alia, that Defendant was negligent in the maintenance and control of the subject property, negligently designed, constructed and maintained the sunken catch basin, failing to provide the public With a safe walking surface, failing to provide lighting in the area of the accident and failing to inspect the area. Having already established its entitlement to summary judgment on the negligent construction and design claim, Defendant must now demonstrate, prima facie, that it did not have prior written notice of the alleged defect, that no exceptions to prior written notice exist and that it had no duty to install lighting in the subject area. Id.

Defendant attempts to establish that it lacked prior written notice of the alleged defect through the submission of the Witt Affidavit. Pursuant to S155.1 of the Village of Millbrook Code, no civil action shall be maintained against Defendant for personal injury as a result of any street, sidewalk or grounds owned by the Village of Millbrook being defective, out of repair, unsafe, dangerous or obstructed unless written notice of said condition was received by the "Clerk of the governing body of the Village" and there was a failure or neglect to repair or remove said condition within a reasonable time thereafter.

In her affidavit, Witt avers that she is the Village Clerk and has held that position since 2016. She further states that pursuant to §155-1(A)(l) of the Village Code, the Village Clerk keeps and maintains all written notices of defective out of repair, unsafe, dangerous and obstructed condition. After searching the records maintained by her Office, Witt avers that Defendant did not receive written notice of the condition complained of by Plaintiff prior to the December 9, 2018 accident. However, §155-((A)(1) of the Village Code specifically provides that the required written notice shall be made to the "Clerk of the governing body of the Village." The Witt Affidavit is silent as to whether she, as Village Clerk, is also the Clerk of the governing body referenced in the Code. Without this, Defendant has not established that the search conducted by Witt was sufficient under the Village Code to establish its lack of prior written notice.^[1] As such, Defendant fails to establish its prima facie entitlement to summary judgment on the issue of prior written notice.

Furthermore assuming; arguendo, that Defendant had established its prima. facie case, Plaintiff raises triable issues· of fact in opposition sufficient to deny summary judgment. Plaintiff submits the affidavit and...