McConnell v. Cty. of Nassau

213 N.Y.S.3d 356

228 A.D.3d 649

Joseph MCCONNELL, respondent,

v.COUNTY OF NASSAU, appellant, et al., defendant.

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

Argued—December 11, 2023

June 5, 2024

Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag and Jackie L. Gross of counsel), for appellant.

Parker Waichman, LLP, Port Washington, NY (Jay L.T. Breakstone of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, BARRY E. WARHIT, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant County of Nassau appeals from a judgment of the Supreme Court, Nassau County (James P. McCormack, J.), dated December 18, 2020.

The judgment, upon, inter alia, the denial of that defendant’s oral application, in effect, pursuant to CPLR 4401, made at the close of the plaintiff’s case and, in effect, renewed at the close of the evidence on the issue of liability, for judgment as a matter of law dismissing the complaint insofar as asserted against that defendant, upon a jury verdict in favor of the plaintiff and against that defendant on the issue of liability, and upon the denial of that defendant’s oral application, in effect, pursuant to CPLR 4404(a) to set aside the jury verdict on the issue of liability and for judgment as a matter of law dismissing the complaint insofar as asserted against that defendant, is in favor of the plaintiff and against that defendant in the principal sum of $170,000.

ORDERED that the judgment is reversed, on the law, with costs, the oral application of the defendant County of Nassau, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it is granted, and the complaint is dismissed insofar as asserted against that defendant.

The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained on July 4, 2013, when he slipped and fell on a pool deck at premises owned by the defendant County of Nassau. The action proceeded to a bifurcated jury trial. The plaintiff’s theory of liability at trial was that he slipped and fell on a defective painted depth marker, which was a sign painted onto the pool deck indicating the depth of the water at that location. The plaintiff testified at trial that, after he fell, he stood up and ran his foot along the painted area and it felt like "a sheet of ice." The evidence adduced at trial showed that depth markers were applied to the pool deck by the County between 2006 and 2008 using a mixture of sand and paint. Specifically, a maintenance worker employed by the County testified that the depth markers were painted onto the pool deck and beach sand was then added to the paint to make the depth markers coarse. After the paint dried, the depth markers were painted with black spray paint. At trial, the plaintiff’s expert testified, among other things, that the County’s method of sprinkling sand on top of the paint was not the safest way to paint the depth markers because this practice did not ensure equal distribution of the sand or that the sand would remain permanently on the paint. The plaintiff’s expert testified that the best method of painting the depth markers was utilizing a paint that already had sand mixed into the paint.

At the close of the plaintiff’s case on the issue of liability, the County made an oral application, in effect, pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint insofar as asserted against it. The Supreme Court denied the application. The County, in effect, renewed its application at the close of evidence on the issue of liability, contending that the County did not receive prior written notice of the alleged dangerous condition and that there was no evidence that the County affirmatively created the condition. The court reserved decision on that application. At the conclusion of the trial on the issue of liability, the jury returned a verdict, finding that the County was negligent and that its negligence was a substantial factor in causing the accident. Thereafter, the County made an oral application, in effect, pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability and for judgment as a matter of law dismissing the complaint insofar as asserted against it. The court denied the application. After a jury returned a verdict in favor of the plaintiff and against the County on the issue of damages, the court issued a judgment in favor of the plaintiff and against the County in the principal sum of $170,000. The County appeals.

[1, 2] "A motion pursuant to CPLR 4401 or 4404 for judgment as a matter of law may be granted only ‘where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party’ " (Caliendo v. Ellington, 104 A.D.3d 635, 636, 960 N.Y.S.2d 471, quoting Szczerbiak v. Pilat, 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346; see Manning v. Bassi, 195 A.D.3d 923, 923–924, 146 N.Y.S.3d 499). "In considering such a motion, ‘the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant’ " (Hamilton v. Rouse, 46 A.D.3d 514, 516, 846 N.Y.S.2d 650, quoting Szczerbiak v. Pilat, 90 N.Y.2d at 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346; see Manning v. Bassi, 195 A.D.3d at 924, 146 N.Y.S.3d 499).

[3–5] Where, as here, a municipality has adopted a prior written notice law (see Nassau County Administrative Code § 12– 4.0[e]), it cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104; Barnes v. Inc. Vil. of Port Jefferson, 120 A.D.3d 528, 529, 990 N.Y.S.2d 841). One such exception exists where the municipality affirmatively created the defect through an act of...