Marshall v. City of Albany

184 A.D.3d 1043

126 N.Y.S.3d 562

Monique A. MARSHALL, Respondent,

v. CITY OF ALBANY, Defendant,andCapital District Transportation Authority et al., Appellants.

528801

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 21, 2020

Decided and Entered: June 25, 2020

O'Connor, O'Connor, Bresee & First, PC, Albany (Danielle N. Meyers of counsel), for appellants.

Conway & Kirby, PLLC, Delmar (Andrew W. Kirby of counsel), for respondent.

Before: Egan Jr., J.P., Mulvey, Aarons, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P. Appeal from an order of the Supreme Court (Melkonian, J.), entered February 20, 2019 in Albany County, which, among other things, denied certain defendants' motion for summary judgment dismissing the complaint against them.

On the morning of November 28, 2014, plaintiff was waiting for a bus operated by defendant Capital District Transportation Authority (hereinafter CDTA) at an outdoor bus shelter located near the corner of Orange Street and North Pearl Street in the City of Albany. As the bus arrived, plaintiff exited the bus shelter and took one or two steps across the sidewalk whereupon she slipped and fell on snow and ice that had accumulated on a row of brick pavers that separated the sidewalk from the curb. Plaintiff thereafter commenced this action against, as relevant here, CDTA and its related corporate entities (hereinafter collectively referred to as defendants) to recover damages for personal injuries.¹ Following discovery, defendants moved for summary judgment dismissing the complaint against them on the ground that they did not owe plaintiff a duty of care since they did not own, occupy or control the sidewalk upon which plaintiff fell. Supreme Court denied the motion, finding that plaintiff raised a triable issue of fact as to whether defendants breached their duty by requiring her to traverse a dangerous pathway to get from the bus shelter onto the bus.² Defendants appeal, and we affirm.

Defendants contend that Supreme Court erred when it denied their motion for summary judgment based upon a "safe path" theory of negligence, since said theory was first raised by plaintiff in her original bill of particulars and was not contained in either her notice of claim or complaint/amended complaint. Defendants failed to challenge the sufficiency of the notice of claim or the complaint/amended complaint based on this ground in their motion for summary judgment and, inasmuch as this issue was raised for the first time on appeal, it is unpreserved for our review (see Stein v. Kendal at Ithaca, 129 A.D.3d 1366, 1367, 10 N.Y.S.3d 754 [2015] ; see also Smith v. County of Orange, 51 A.D.3d 1006, 1006, 858 N.Y.S.2d 385 [2008] ; McCarthy v. City of New York, 5 A.D.3d 445, 446, 772 N.Y.S.2d 589 [2004] ).³

It is well settled that "liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of the premises, and that the existence of one or more of these elements is sufficient to give rise to a duty to exercise reasonable care" ( Foley v. Golub Corp., 252 A.D.2d 905, 906–907, 676 N.Y.S.2d 308 [1998] [internal quotation marks, brackets and citations omitted]; see Boehm v. Barnada, 7 A.D.3d 911, 912, 776 N.Y.S.2d 633 [2004] ; Balsam v. Delma Eng'g Corp., 139 A.D.2d 292, 298, 532 N.Y.S.2d 105 [1988], lv dismissed and denied 73 N.Y.2d 783, 536 N.Y.S.2d 741, 533 N.E.2d 671 [1988] ). In particular, a finding of a special use will arise "where there is a modification to the public sidewalk, such as the installation of a driveway, or a variance of the sidewalk to allow for ingress and egress, that was constructed in a special manner for the benefit of the [defendant]" ( Giannelis v. BorgWarner Morse TEC Inc., 167 A.D.3d 1185, 1186, 89 N.Y.S.3d 475 [2018] [internal quotation marks and citations omitted]; see Terilli v. Peluso, 114 A.D.3d 523, 523, 980 N.Y.S.2d 443 [2014] ; Balsam v. Delma Eng'g Corp., 139 A.D.2d at 298, 532 N.Y.S.2d 105 ) and that the defendant "derived a unique benefit unrelated to the public use" ( Moons v. Wade Lupe Constr. Co., Inc., 43 A.D.3d 501, 502, 841 N.Y.S.2d 160 [2007] ). Additionally, common carriers owe a duty of care to their passengers that require them to not only keep their transportation vehicles safe, but also to maintain a safe means of ingress and egress thereto for their passengers, including any area that is owned and maintained by another where said area is the primary and exclusive means of approach and/or access to the carrier (see Bingham v. New York City Tr. Auth., 8 N.Y.3d 176, 180–181, 832 N.Y.S.2d 125, 864 N.E.2d 49 [2007] ; Lee v. New York City Tr. Auth., 138 A.D.3d 579, 579–580 , 28 N.Y.S.3d 607 [2016] ).

In support of their motion for summary judgment, defendants submitted, among other things, the deposition testimony of Jessica Morgan, a laborer for the City, Mark Wos, CDTA's director of facilities, and Nicholas DeMatteo, a CDTA transportation supervisor. Morgan testified that a bus passenger exiting the subject bus shelter was required to cross both the gray sidewalk maintained by the City, as well as a section of brick pavers separating the sidewalk from the curb, in order to board a bus at that location. She acknowledged that, in November 2014, the City was responsible for performing snow and ice removal for the sidewalk in front of this shelter, but explained that the City was not otherwise responsible for maintaining the bus shelter or removing snow and ice from the brick pavers adjacent thereto, specifically indicating that this was CDTA's responsibility. Wos contradicted Morgan, testifying that CDTA did not have any responsibility for removing snow and ice from the brick pavers in front of the subject bus stop; however, he ultimately conceded that, in the winter months, CDTA employees conduct...