Van Wageningen v. City of Ithaca

168 A.D.3d 1266

90 N.Y.S.3d 715

Judith Young VAN WAGENINGEN, as Administrator of the Estate of Alan Andrew Young–Bryant, Deceased, Respondent,

v.CITY OF ITHACA, Appellant.

526895

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

Calendar Date: December 13, 2018

Decided and Entered: January 17, 2019

Costello, Cooney & Fearon, PLLC, Syracuse (Daniel R. Rose of counsel), for appellant.

Friedlander & Friedlander, PC, Ithaca (William S. Friedlander of counsel, Waverly), for respondent.

Before: Garry, P.J., Egan Jr., Devine, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Devine, J.Alan Andrew Young–Bryant (hereinafter decedent) died after a December 2012 incident in which he fell from defendant's trail into a gorge. Plaintiff, the administrator of decedent's estate, thereafter commenced this wrongful death action alleging that negligent trail maintenance led to the fatal fall. Defendant answered and then moved for summary judgment, arguing that it had not received prior written notice of the defective conditions on the trail as required by Ithaca City Charter former § C–107. Supreme Court denied the motion, and defendant now appeals.

We affirm. " Where, as here, ‘a municipality has enacted a prior written notice statute pertaining to its thoroughfares or sidewalks, it cannot be held liable unless such written notice of the allegedly defective or dangerous condition was actually given’ " ( Cornish v. City of Ithaca, 149 A.D.3d 1321, 1322, 52 N.Y.S.3d 565 [2017], quoting Gagnon v. City of Saratoga Springs, 51 A.D.3d 1096, 1097, 858 N.Y.S.2d 797 [2008], lv denied 11 N.Y.3d 706, 868 N.Y.S.2d 598, 897 N.E.2d 1082 [2008] ; see Pasternak v. County of Chenango, 156 A.D.3d 1007, 1007, 67 N.Y.S.3d 670 [2017] ). Inasmuch as the trail is a paved walkway that connects two public thoroughfares and affords individuals a general right of passage between them, it is "the functional equivalent of a sidewalk or highway" to which the prior written notice statute applies ( Mullen v. Town of Hempstead, 66 A.D.3d 745, 746, 886 N.Y.S.2d 355 [2009], lv denied 13 N.Y.3d 717, 895 N.Y.S.2d 317, 922 N.E.2d 906 [2010] ; see General Municipal Law § 50–e [4 ]; Woodson v. City of New York, 93 N.Y.2d 936, 937, 693 N.Y.S.2d 69, 715 N.E.2d 96 [1999] ; Kadlecik v. Village of Endicott, 174 A.D.2d 923, 924, 571 N.Y.S.2d 619 [1991] ; Oprisko v. Jobbers, 158 A.D.2d 875, 876, 551 N.Y.S.2d 670 [1990] ; cf. Quackenbush v. City of Buffalo, 43 A.D.3d 1386, 1388, 842 N.Y.S.2d 657 [2007] ). As such, absent exceptions that are not at issue (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999] ), prior written notice of defects on the trail needed to be "deliver[ed] to the office of" either the City Clerk or the Superintendent of Public Works in order for this action to proceed (Ithaca City Charter former § C–107).

Even if defendant met its initial burden of showing the absence of prior written notice (see Dalton v. City of Saratoga Springs, 12 A.D.3d 899, 900, 784 N.Y.S.2d 702 [2004] ), plaintiff responded with proof that raised a material question of fact. In particular, plaintiff produced a police investigation report concluding that decedent had fallen along a part of the trail with multiple defects, including broken pavement, a "bent/unsecured hand railing ... and huge gap spaces in sidewalk edge adjacent to [the] cliff side edge." Plaintiff also demonstrated that, by the time of the fall, the Department of Public Works had received numerous written complaints about the condition of the trail. General complaints and the subsequent efforts of department personnel to evaluate the condition of the trail did not "obviate the need for prior written notice" of the particular defects implicated in decedent's fall ( Wolin v. Town of N. Hempstead, 129 A.D.3d 833, 835, 11 N.Y.S.3d 627 [2015] ; see Amabile v. City of Buffalo, 93 N.Y.2d at 475, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Cornish v. City of Ithaca, 149 A.D.3d at 1323, 52 N.Y.S.3d 565 ; Palo v. Town of Fallsburg, 101 A.D.3d 1400, 1400–1401, 956 N.Y.S.2d 648 [2012], lv denied 20 N.Y.3d 862, 965 N.Y.S.2d 81, 987 N.E.2d 642 [2013] ). That said, one of the written complaints was a January 2012 email forwarded to an Assistant Superintendent of Public Works that was, according to his testimony, "probably" shared with the Superintendent of Public Works, and attached to the email is a map with photographs that appear to reference the defects in the area where decedent fell. Accordingly, viewing the evidence in the light most favorable to plaint...