Opinion
918 CA 19–00309
12-20-2019
Pauline A. BEAGLE, Plaintiff–Respondent, v. CITY OF BUFFALO, Defendant–Appellant, John Gikas, Sam Gikas, Milkie's on Elmwood, Inc., Defendants–Respondents, et al., Defendant.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (CHRISTOPHER POOLE OF COUNSEL), FOR DEFENDANT–APPELLANT. CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR PLAINTIFF–RESPONDENT. BROWN & KELLY, LLP, BUFFALO (KEVIN D. WALSH OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (CHRISTOPHER POOLE OF COUNSEL), FOR DEFENDANT–APPELLANT.
CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
BROWN & KELLY, LLP, BUFFALO (KEVIN D. WALSH OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: CARNI, J.P., LINDLEY, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion and reinstating the amended complaint and any cross claims against defendants John Gikas, Sam Gikas, and Milkie's on Elmwood, Inc., and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedly sustained when she tripped and fell on an allegedly defective sidewalk in defendant City of Buffalo (City) that abutted property owned by defendants John Gikas and Sam Gikas (Gikas defendants) and leased to defendant Milkie's on Elmwood, Inc. (Milkie's). The parties do not dispute that, at the time of the incident, two sidewalk slabs were elevated by the roots of a nearby tree owned by the City. At some time before the accident, a "cold patch" repair was performed, covering the area between the two sidewalk slabs with asphalt. Nevertheless, on the day of plaintiff's accident, the sidewalk slabs remained elevated.
Following discovery, the Gikas defendants and Milkie's (collectively, property defendants) jointly moved for summary judgment dismissing the amended complaint and all cross claims asserted against them. The City thereafter cross-moved for summary judgment dismissing the amended complaint against it. Supreme Court granted the property defendants' motion but denied the City's cross motion. The City appeals. Although plaintiff also filed a notice of appeal, her appeal was deemed dismissed when it was not timely perfected (see 22 NYCRR 1250.10 [a] ). We conclude that the court erred in granting the property defendants' motion but properly denied the City's cross motion, and we therefore modify the order accordingly. With respect to the property defendants' motion, "it is well established that, as an abutting landowner [and tenant], [the property defendants are] not liable for injuries sustained as the result of a defect in the sidewalk unless the special use doctrine applies, i.e., the sidewalk was constructed in a special manner for [their] benefit, or unless [they] affirmatively created the defective condition or negligently constructed or repaired the sidewalk or there is a local ordinance charging [them] with the duty to maintain and repair the sidewalk and imposing liability for injuries resulting from [their] failure to do so" ( Guadagno v. City of Niagara Falls, 38 A.D.3d 1310, 1311, 832 N.Y.S.2d 732 [4th Dept. 2007] ; see Clauss v. Bank of Am., N.A., 151 A.D.3d 1629, 1630, 57 N.Y.S.3d 273 [4th Dept. 2017] ; Shatzel v. 152 Buffalo St., Ltd., 129 A.D.3d 1626, 1626–1627, 13 N.Y.S.3d 715 [4th Dept. 2015] ).
Although the property defendants established as a matter of law that the special use doctrine does not apply and that they did not affirmatively create the allegedly defective condition, the Charter of the City of Buffalo (Charter) § 413–50(A) specifically imposes on "owner[s] or occupant[s] of any lands fronting or abutting on any street," i.e., the property defendants, a duty to maintain and repair the sidewalk and provides that their failure to do so will result in liability for injuries to users of the sidewalk. Contrary to the property defendants' contention, that duty to maintain and repair extends to damage caused by the roots of a tree owned by the City where, as here, "the local ordinance contains no exceptions to the duty imposed on abutting landowners to maintain the sidewalk, even if the allegedly dangerous condition was created by a root extending from [City] property" ( Shatzel, 129 A.D.3d at 1627, 13 N.Y.S.3d 715 ; see Moore v. Newport Assoc. L.P., 16 Misc.3d 618, 620, 842 N.Y.S.2d 268 [Sup. Ct., Kings County 2007] ; Faulk v. City of New York, 16 Misc.3d 1108 [A], 2007 N.Y. Slip Op. 51346 [U], *8, 841 N.Y.S.2d 826 [Sup Ct, Kings County 2007] ). The fact that a different section of the Charter prohibits anyone but the City from performing asphalt repairs (see § 413–46[D] ) does not absolve the property defendants from liability under section 413–50(A) inasmuch as the Charter does permit landowners to reconstruct sidewalks after obtaining the appropriate permit from the City (see § 413–46[A] ).
With respect to the City's cross motion, the City contends that plaintiff's failure to plead in her amended complaint that the City had prior written notice of the alleged defect in the sidewalk is fatal to her action. It is well settled that where, as here, a municipality has enacted a prior written notice provision (see Charter § 21–2), compliance with that provision is a condition precedent to tort actions against that municipality (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 473–474, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999] ; Malek v. Village of Depew, 156 A.D.3d 1412, 1413, 65 N.Y.S.3d 843 [4th Dept. 2017] ; Benson v. City of Tonawanda, 114 A.D.3d 1262, 1263, 980 N.Y.S.2d 683 [4th Dept. 2014] ). Contrary to the contentions of plaintiff and the property defendants, a municipality's actual notice or knowledge of a dangerous condition, as exists in this case, does "not avoid the notice requirement" ( Oswald v. City of Niagara Falls, 13 A.D.3d 1155, 1157, 787 N.Y.S.2d 757 [4th Dept. 2004] ; see Guadagno, 38 A.D.3d at 1311–1312, 832 N.Y.S.2d 732 ; see generally Amabile, 93 N.Y.2d at 475–476, 693 N.Y.S.2d 77, 715 N.E.2d 104 ).
We nonetheless reject the City's contention. The Court of Appeals "has recognized ... two exceptions to the statutory rule requiring prior written notice, namely, where the locality created the defect or hazard through an affirmative act of negligence ... and where a ‘special use’ confers a special benefit upon the locality" ( Amabile, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ; Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [2007] ).
Here, plaintiff invoked the affirmative negligence exception by alleging in her amended complaint that the City "creat[ed]" the dangerous condition. That exception requires evidence "that the municipality affirmatively created the defect through an act of negligence" ( Yarborough, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; see Ahern v. City of Syracuse, 150 A.D.3d 1670, 1670–1671, 53 N.Y.S.3d 787 [4th Dept. 2017] ). The exception is " ‘limited to work by the City that immediately results in the existence of a dangerous condition’ " ( Oboler, 8 N.Y.3d at 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270 ; see Yarborough, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Hawley v. Town of Ovid, 108 A.D.3d 1034, 1035, 969 N.Y.S.2d 641 [4th Dept. 2013] ) and "does not apply to conditions that develop over time" ( Horan v. Town of Tonawanda, 83 A.D.3d 1565, 1567, 921 N.Y.S.2d 764 [4th Dept. 2011] ; see Burke v. City of Rochester, 158 A.D.3d 1218, 1219, 70 N.Y.S.3d 271 [4th Dept. 2018] ).
In our view, the evidence submitted by the property defendants in support of their motion, which was then incorporated into the City's cross motion, raised triable issues of fact whether the City performed the "cold patch" repair to the area sometime before plaintiff's accident and whether the condition of the sidewalk on the day of plaintiff's accident was the same as when the "cold patch" was first applied. We thus conclude that the City failed to establish as a matter of law that it did not affirmatively create a dangerous condition or that the dangerous condition was due solely to conditions that developed over time (see e.g. Wald v. City of New York, 115 A.D.3d 939, 940–941, 982 N.Y.S.2d 534 [2d Dept. 2014] ; Hawley, 108 A.D.3d at 1034–1035, 969 N.Y.S.2d 641 ; Benty v. First Methodist Church of Oakfield, 24 A.D.3d 1189, 1190, 807 N.Y.S.2d 771 [4th Dept. 2005] ; see also Stanciu v. Bilello, 138 A.D.3d 824, 825–826, 29 N.Y.S.3d 482 [2d Dept. 2016] ).
With respect to the City's final contention, we conclude that the City failed to establish as a matter of law that the condition of the sidewalk did not constitute a dangerous condition. " ‘[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case’ ..., and the existence or nonexistence of a defect or dangerous condition ‘is generally a question of fact for the jury’ " ( Wiedenbeck v. Lawrence, 170 A.D.3d 1669, 1669–1670, 96 N.Y.S.3d 781 [4th Dept. 2019], quoting Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489 [1997] ). Here, evidence that the condition of the sidewalk appeared to be dangerous both before and after the cold patch was applied raises such triable issues of fact (see Cuebas v. Buffalo Motor Lodge/Best Value Inn, 55 A.D.3d 1361, 1362, 865 N.Y.S.2d 184 [4th Dept. 2008] ; cf. Trionfero v. Vanderhorn, 6 A.D.3d 903, 904, 774 N.Y.S.2d 612 [3d Dept. 2004] ).