Opinion
11–22421
04-12-2018
James M. CONNOLLY, as Administrator of the Estate of Warren Connolly, Plaintiff, v. Victor L. VENTUZELO, Kerriann Ventuzelo and Town of Islip, Defendants.
JOHN L. JULIANO, P.C., 39 Doyle Court, East Northport, New York 11729, Attorney for Plaintiff. LAW OFFICES OF EDWARD J. TROY, 44 Broadway, Greenlawn, New York 11710, Attorney for Defendant Town of Islip.
JOHN L. JULIANO, P.C., 39 Doyle Court, East Northport, New York 11729, Attorney for Plaintiff.
LAW OFFICES OF EDWARD J. TROY, 44 Broadway, Greenlawn, New York 11710, Attorney for Defendant Town of Islip.
Sanford Neil Berland, J.
Upon the following papers numbered 1 to 29 read on this motion for summary judgment : Notice of Motion/ Order to Show Cause and supporting papers 1–21 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 22–27 ; Replying Affidavits and supporting papers 28–29 ; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion by defendant Town of Islip for summary judgment dismissing the complaint and all cross claims against it is granted.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff Warren Connolly on February 6, 2011, at approximately 10:00 p.m., when as a pedestrian walking northbound on the west side of Lowell Avenue near Hemlock Street in Central Islip, New York, he was struck by a vehicle operated by defendant Victor Ventuzelo. Plaintiff's friend, Laurence Grube, was also struck by Ventuzelo's Ford F–250 pickup truck, which caused his death. Ventuzelo first struck Grube, then Connolly, and left the scene of the accident without stopping. Ventuzelo later returned, admitted to drinking and leaving the scene, was arrested, and ultimately pled guilty to two counts of leaving the scene of an incident without reporting ( Vehicle and Traffic Law § 600 [a] [2] ) and one count of operating a motor vehicle while under the influence of alcohol ( Vehicle and Traffic law § 1192 [1 ] ). Ventuzelo was sentenced to six months incarceration and five years probation. Ventuzelo settled with plaintiff and the estate of Laurence Grubs for $300,000.00, and the action against him was discontinued. With regard to the Town of Islip, plaintiff alleges that defendant Town was negligent in causing him to walk directly on Lowell Avenue as a result of excessive snow piles not removed from the sidewalk adjacent to the roadway. Issue has been joined, discovery is complete, and a note of issue has been filed. On February 20, 2016, plaintiff died. On October 14, 2016, plaintiff's father was granted Letters of Administration and on April 5, 2017 the caption was amended and plaintiff's estate was substituted for decedent plaintiff.
Defendant Town now moves for summary judgment dismissing the complaint and all cross claims against it on the grounds it did not have actual or constructive notice of any defective or dangerous condition at the accident location, and it did not engage in affirmative negligence that contributed to any alleged dangerous condition. In support of the motion, it submits, among other things, the 50–h hearing transcript, the deposition transcripts of decedent Warren Connolly and Peter Kletchka, the police accident report, affidavits of the Town Clerk and Peter Kletchka, various photographs, Ventuzelo's Certificate of Criminal Disposition, certified copies of deeds for Francis J. O'Neil Elementary School and the adjacent property. Plaintiff opposes the motion and submits an affirmation of counsel, the notice of claim, various color photographs, the note of issue, and the prior substitution order of the court dated April 5, 2017 (Baisley, J.).
Plaintiff's decedent testified that on February 6, 2011 he was walking northbound on the west side of Lowell Avenue, a four lane public street, near Hemlock Street in Central Islip, New York. He testified that he was struck by a vehicle operated by Victor Ventuzelo, which fled the scene. It had snowed "a couple of days" prior to the accident and the roads were plowed, but the sidewalks were "completely covered by two to three feet of snow." Decedent testified that he was walking single file on Lowell Avenue with Grubs in the lead and Grubs was hit head on by the pickup truck and then flew into him. Grubs died shortly thereafter. Decedent testified that he couldn't walk on the sidewalk because it had about three feet of snow on it, as it was covered with "like four storms of snow." Decedent admitted that he did not make any prior written complaints to the Town about the sidewalk.
Peter Kletchka testified that he is employed by defendant Town of Islip as Public Works Project Supervisor and that the Town is responsible for maintaining Lowell Avenue. He testified that the sidewalks alongside Lowell Avenue are owned by the Town, but maintenance responsibilities for such sidewalks are with the adjacent landowners. Certified deeds indicate that the abutting property owners are the Central Islip School District and the County of Suffolk. Olga H. Murray avers that she is the Town Clerk for the Town of Islip, that she made a search of the Town records, and that no complaints regarding Lowell Avenue were found.
The proponent of a summary judgment motion 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 ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 508 NYS2d 923 [1986] ; Sillman v. Twentieth Century–Fox Film Corp. , 3 NY2d 395, 165 NYS2d 498 [1957] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316 [1985] ). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ... and must "show facts sufficient to require a trial of any issue of fact" ( CPLR 3212 [b]; Zuckerman v. City of New York , 49 NY2d 557, 427 NYS2d 595 [1980] ). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v. Barreto , 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001] ; O'Neill v. Town of Fishkill , 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987] ).
Defendant Town has made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it lacked prior written notice of the allegedly defective condition of the sidewalk. Where a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect which comes within the ambit of the law unless it has received prior written notice of the alleged defect, or an exception to the prior written notice requirement applies (see Conner v. City of New York , 104 AD3d 637, 960 NYS2d 204 [2d Dept 2013] ; Masotto v. Village of Lindenhurst , 100 AD3d 718, 954 NYS2d 557 [2d Dept 2012] ; Braver v. Village of Cedarhurst , 94 AD3d 933, 942 NYS2d 178 [2d Dept 2012] ). The Court of Appeals has recognized only two exceptions to the prior written notice requirement, namely, where the municipality created the defect through an affirmative act of negligence, or a special use confers a special benefit upon the municipality (see Yarborough v. City of New York , 10 NY3d 726, 853 NYS2d 261 [2008] ; Amabile v. City of Buffalo , 93 NY2d 471, 693 NYS2d 77 [1999] ; Carlucci v. Village of Scarsdale , 104 AD3d 797, 961 NYS2d 318 [2d Dept 2013] ).
Pursuant to Town Law § 65–a and the Town of Islip Code, as a precondition to commencing a civil action against the Town to recover damages for personal injuries sustained as a result of a defect in a town highway, the town must be given prior written notice of the defect. Town of Islip Code § 47A–3 states, in relevant part:
A. No civil action shall be maintained against the Town of Islip or any of its employees for damages or injuries to persons or property sustained by reason of any highway, street, bridge, culvert, sidewalk, crosswalk, highway or street marking, traffic sign, signal or device, tree, tree limb or other property owned or maintained by the Town of Islip being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective, out of repair, unsafe, dangerous or obstructed condition of such highway, street, bridge, culvert, sidewalk, crosswalk, highway or street marking, traffic sign, signal or device, tree, tree limb, or other property was actually given to the Town Clerk or Commissioner of Public Works and there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger, obstruction or condition complained of.
B. The Commissioner of Public Works shall transmit in writing to the Town Clerk, within five days after the receipt thereof, all written notices received by him pursuant to this section and Subdivision 2 of § 65–a of the Town Law. The Town Clerk shall cause all written notices received by him or her, pursuant to this section and Subdivision 2 of § 65–a of the Town Law to be presented to the Town Board within five days of the receipt thereof or at the next succeeding Town Board meeting, whichever shall be sooner.
Telephonic or other oral complaints, as well as any internal records generated by the Town that document such complaints, are insufficient to satisfy the statutory requirement (see Wilkie v. Town of Huntington , 29 AD3d 898, 816 NYS2d 148 [2d Dept 2006] ; Cenname v. Town of Smithtown , 303 AD2d 351, 755 NYS2d 651 [2d Dept 2003] ). Thus, an oral complaint reduced to writing by a municipality does not constitute prior written notice (see McCarthy v. City of White Plains , 54 AD3d 828, 829–830, 863 NYS2d 500 [2d Dept 2008] ; Akcelik v. Town of Islip , 38 AD3d 483, 831 NYS2d 491[2d Dept 2007] ; Cenname v. Town of Smithtown , supra ). Prior written repair orders also do not constitute prior written notice of prior defects ( Lopez v. Gonzalez , 44 AD3d 1012, 1013, 845 NYS2d 91 [2d Dept 2007] ; McCarthy v. City of White Plains , supra ; Dalton v. City of Saratoga Springs , 12 AD3d 899, 901, 784 NYS2d 702 [3d Dept 2004] ). Similarly, neither constructive notice nor actual notice of a defect obviates the need for prior written notice to the Town (see Amabile v. City of Buffalo , supra; Wilkie v. Town of Huntington , supra; Cenname Town of Smithtown , supra ).
Here, the Town has demonstrated through the affidavits of the Town Clerk and Public Works Project Supervisor Kletchka and the deposition testimony of decedent that it lacked prior written notice. The Town has also established that it is the responsibility of adjacent property owners for snow removal on the sidewalk (Islip Town Code § 47A–17).
The Town having established the lack of prior written notice, the burden shifts to plaintiff to proffer evidence that one of the claimed exceptions to the written notice requirement applies (see Gagnon v. City of Saratoga Springs ,51 AD3d 1096, 858 NYS2d 797 [3d Dept 2008] ; Betzold v. Town of Babylon , 18 AD3d 787, 796 NYS2d 680 [2d Dept 2005] ; Brooks v. Village of Horseheads , 14 AD3d 756, 788 NYS2d 437 [3d Dept 2005] ).
Plaintiff, citing the Court of Appeals' decision in San Marco v. Vill./Town of Mount Kisco , 16 NY3d 111, 118, 944 N.E.2d 1098 [2010], and the Second Department's decisions in Lopez–Calderone v. Lang–Viscogliosi , 127 AD3d 114, 37 NYS3d 506 [2d Dept 2015], and Smith v. New York City Hous. Auth. , 124 AD3d 625, 625, 1 N.Y.S.3d 296, 297 [2d Dept 2015], maintains that even in absence of prior written notice of snow and ice conditions, if the municipality created the allegedly dangerous condition, summary judgment should be denied. That exception to the prior written notice requirement applies, however, only where "it can be proven that the ‘locality created the defect or hazard through an affirmative act of negligence ’ " ( San Marco v. Vill./Town of Mount Kisco , supra , 16 NY3d at 116 (emphasis supplied), quoting Amabile v. City of Buffalo , 93 NY2d 471, 474 [1999] ). Here, it was the responsibility of the adjacent property owners, not the Town, to clear the sidewalk of snow (cf. DiNatale v. State Farm Mut. Auto. Ins. Co. , 5 AD3d 1123, 1125, 774 N.Y.S.2d 233, 235–36 [4th Dept 2004] ), and there is no allegation, nor is any proof offered, that the Town, whether by clearing snow from the roadway days earlier or otherwise, prevented those property owners from fulfilling that responsibility. Thus, in the circumstances presented, the Town's plowing of snow from the roadway, and the method it employed in doing so—which is the only "affirmative act" of the Town cited by plaintiff—cannot reasonably be found to be "an affirmative act of negligence" (see Moncrieffe v. City of White Plains , 115 AD3d 915, 917 [2d Dept 2014], citing Keating v. Town of Oyster Bay , 111 AD3d 604, 605 [2d Dept 2013] ; Forman v. City of White Plains , 5 AD3d 434 [2d Dept 2004] ; Davis v. City of New York , 270 App Div 1047 [2d Dept 1946], affd 296 NY 869 [1947] ; and San Marco v. Village/Town of Mount Kisco , 16 NY3d 111 [2010] ; see generally Davis v. City of New York, 270 A.D. 1047, 1047–48 [2d Dept 1946], aff'd , 296 NY 869 [1947] ), nor a proximate cause of the very tragic accident that occurred in the roadway of Lowell Avenue on the night of February 6, 2011 or, therefore, of plaintiff's decedent's injuries (see Bacon v. Mussaw , 167 AD2d 741, 744–45 [3d Dept 1990] ).
Accordingly, the motion by defendant Town of Islip dismissing the complaint and any cross claims that have been asserted against it is granted.