Opinion
No. 51918.
10-03-2017
Curt FENIMORE, Individually and as Administrator of the Estate of Jennifer A. Fenimore and as Parent and Natural Guardian of Curt Fenimore, Jr., Nicholas Fenimore and Anthony Fenimore, Plaintiff, v. COUNTY OF WARREN and Town of Hague, Defendants.
McPhillips, Fitzgerald & Cullum, L.L.P., Glens Falls (Daniel J. Hogan of counsel) for plaintiff. FitzGerald Morris Baker Firth, P.C., Glens Falls (Joshua D. Lindy of counsel) for defendant County of Warren. Shantz & Belkin, Latham (M. Randolph Belkin of counsel) for defendant Town of Hague.
McPhillips, Fitzgerald & Cullum, L.L.P., Glens Falls (Daniel J. Hogan of counsel) for plaintiff.
FitzGerald Morris Baker Firth, P.C., Glens Falls (Joshua D. Lindy of counsel) for defendant County of Warren.
Shantz & Belkin, Latham (M. Randolph Belkin of counsel) for defendant Town of Hague.
ROBERT J. MULLER, J.
On February 21, 2008, Jennifer A. Fenimore (hereinafter decedent) died when the vehicle she was driving left the road and struck a tree as she was traveling on New Hague Road (a/k/a County Route 21), a rural road in the Town of Hague, Warren County. Plaintiff (decedent's husband)—acting individually, as administrator of decedent's estate and as guardian of their three infant children (then ages 9, 4 and 2)—served a notice of claim on May 13, 2008 and commenced this action against defendant County of Warren (hereinafter the County) and defendant Town of Hague (hereinafter the Town) in February 2009.
Shortly after commencement of the action, defendants moved for summary judgment dismissing the complaint and this Court declined the relief which had been pursued based upon a lack of prior written notice to defendants of the alleged dangerous condition of the road. The Court found that the prior written notice laws did not require dismissal because the claim asserted that defendants had affirmatively created dangerous conditions by, inter alia, improperly designing the road (see generally O'Buckley v. County of Chemung, 88 AD3d 1140, 1141 [2011] ). In denying the motions the Court cited Cappiello v. Johnson (21 AD3d 921 [2005] ) which held that "there is no need to plead or prove prior written notice where it is alleged that a municipality created the hazardous condition" ( id. at 921–922 ). The Court in Cappiello further stated as follows:
"[P]laintiffs raised a triable issue of fact as to whether the [municipality] created a dangerous condition by plowing snow onto either side of the road, where the road pitch and drainage system were such that when the snow melted, water flowed across the road[ and] subsequently froze, ... creating the icy condition which caused the vehicle of the defendant ... to skid and hit the plaintiffs' vehicle" ( id. at 922 ).
In the absence of an appeal of the Court's prior decision this, then, is the law of the case although it is noted that San Marco v. Village/Town of Mount Kisco, 16 NY3d 111 [2010] more authoritatively reinforces this notion.
There are presently two summary judgment motions before the Court, the latter a cross motion on behalf of the Town. The County's motion for summary judgment seeks dismissal of the complaint based upon (a) the lack of prior written notice of any dangerous condition on the subject highway; (b) the lack of prior similar accidents giving rise to constructive notice; (c) the lack of special use or defect created by an affirmative act of negligence; (d) that there were no design, construction or maintenance deficiencies on County Route 21 that caused or contributed to the subject accident; (e) that County Route 21 was properly designed and constructed in compliance with the New York State Highway Design Manual; and (f) that all appropriate and necessary traffic control devices were in place in accordance with the Manual of Uniform Traffic Control Devices on the day of the accident. The Town's motion seeks summary judgment based upon the same lack of prior written notice and also seeks judgment dismissing the County's cross claims which seek contractual and common law indemnification.
Prior to the commencement of this action, plaintiff's notice of claim asserted claims based upon the negligence of the County and Town in designing, constructing and failing to maintain the subject portion of County Route 21; in causing a hazardous and dangerous condition by failing to divert the accumulation of water, snow and ice; in failing to salt and sand; in failing to erect any warning signs; and in failing to design and, or, construct the roadway in a manner that would have prevented the accumulation of water, snow and ice. In subsequent pleadings, testimony, and disclosures these theories of negligence have remained the gravamen of plaintiff's case.
In the present posture plaintiff's initial opposition is that neither the County nor the Town are entitled to file this second motion. " ‘While it is true that multiple motions for summary judgment in the same action generally are looked upon with disfavor, more than one motion is permissible where the subsequent motion is based upon newly discovered evidence or the moving party can demonstrate other sufficient cause for granting the motion’ " ( Green Harbour Homeowners Assn., Inc. v. Ermiger, 128 AD3d 1142, 1143 [2015], quoting Inter–Power of N.Y. v. Niagara Mohawk Power Corp., 259 A.D.2d 932, 933 [1999], lv denied 93 N.Y.2d 812 [1999] [citation omitted]; see Foster v. Kelly, 119 AD3d 1250, 1251 [2014] ; Giardina v. Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011] ; Tuttle v. McQuesten Co., 243 A.D.2d 930, 931 [1997] ). For example, in Green Harbour Homeowners Assn., Inc. v. Ermiger, supra, the Third Department deemed it proper to consider a second motion for summary judgment filed after the completion of discovery-and within the time limits of CPLR 3212(a) -where it turned upon a legal issue not previously decided (see id. at 1143 ; see also Miles A. Kletter, D.M.D. & Andrew S. Levine, D.D.S., P.C. v. Fleming, 32 AD3d 566, 567 [2006] ; Matter of Mega Personal Lines, Inc. v. Halton, 9 AD3d 553, 554–555 [2004] ; W. Joseph McPhillips, Inc. v. Ellis, 8 AD3d 782, 783 [2004] ).
Here, the Court has at hand the longstanding allegations that the municipal entities created the hazardous condition. The issues raised by defendants in this context cannot now be transmogrified into "legal issue[s] not previously decided" ( Green Harbour Homeowners Assn., Inc. v. Ermiger, 128 AD3d at 1143 ). Indeed, these aspects of defendants' respective motions for summary judgment raise essentially the same arguments raised in their prior motions, seek the same relief, and are not supported-in this Court's analysis-by any substantially different evidence to warrant reconsideration (see Consolidated Mtge., LLC v. Westport Golf Invs ., LLC, 141 AD3d 923, 925 [2016] ; Pavlovich v. Zimmet, 50 AD3d 1364, 1365 [2008] ; Matter of Bronsky–Graff Orthodontics, P.C., 37 AD3d 946, 947–948 [2007] ). Accordingly, in the absence of sufficient cause for advancing these issues, these aspects of the motion and cross motion are denied. To the extent defendants' motions collectively urge this Court to additionally consider the lack of constructive notice or lack of special use as, fundamentally, defenses which are in lieu of or replace prior written notice requirements, these arguments are subsumed by the Court's conclusion that the motions are successive.
The Court now turns to the balance of the County's motion and whether there has been a prima facie showing that there were no design, construction or maintenance deficiencies on County Route 21 that would have caused or contributed to the accident, that the roadway was properly designed and constructed in compliance with the State Highway Design Manual and that all appropriate and necessary traffic control devices were in place on the day of the accident. While it is unclear from the cross motion whether the Town has also advanced these additional theories, for reasons as hereinafter discussed, this ambiguity is of no moment.
The County offers a sufficiently detailed expert affidavit in which the witness opines that there were no design, construction, or maintenance deficiencies that would have caused or contributed to the accident, that the roadway was properly designed and constructed in compliance with State standards and that all appropriate and necessary traffic control devices were in place at the time of the accident. In seeking summary judgment the County carries the initial burden to "make a prima facie showing of entitlement to judgment as a matter of law[by] tendering sufficient evidence to eliminate any material issues of fact from the case" ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985] ). To that end, it has succeeded. As the foregoing analysis demonstrates, the County's submissions-most in evidentiary form-sufficiently establish its prima facie entitlement to judgment as a matter of law with respect to the design characteristics and conditions of the roadway. The burden therefore has shifted to plaintiff to submit admissible evidence establishing the existence of triable issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 560 [1980] ).
The Court has nevertheless declined to accept and consider Exhibits "A" and "B" of this expert's affidavit—or any reference thereto—as neither are submitted in evidentiary form (see CPLR 4518[c] ; Rodriguez v. Ryder Truck, Inc., 91 AD3d 935, 936 [2012] ).
In opposition plaintiff proffers an expert affidavit, in equally sufficient detail, within which the witness describes his own site inspections, the taking of numerous measurements of longitudinal grade, tangent sections of the road, inspection of the surface area of the road, signs, drainage, shoulder and embankments at the southbound and northbound lanes-using essentially the same discovery materials and methodology as the County's expert. Coming to a different conclusion than the movant's expert, however, this witness opines that the County failed to install proper signs, created dangerous conditions by failing to properly control known melt water freeze/thaw, and was also negligent by failing to properly apply higher treatment application rates due to the higher friction requirements at the accident location, by improperly storing plowed snow on the north and southbound shoulders, by storing plowed snow in a nearby drainage ditch causing backup conditions and forcing melt water across these lanes and creating a freeze/thaw hazard, and by failing to properly design and maintain the highway's cross section to reduce problems associated with melt water, thereby creating a dangerous condition on the pavement surface for drainage.
Viewing the evidence in a light most favorable to plaintiff and affording him the benefit of every favorable inference (see Maas v.. Cornell Univ., 94 N.Y.2d 87, 91 [1999] ; Commissioners of the State Ins. Fund v. BSB Constr., Inc., 144 AD3d 1236, 1237–1238 [2016] ), material issues of fact exist requiring a trial. The evidence establishes numerous questions of fact as to whether this portion of the roadway presented a dangerous condition to those using it including whether the actual signage was in conformity with the standards applicable in advance of downgrades. Plaintiff's submissions establish questions of fact as to whether the County's design and construction of the roadway created a dangerous condition without the Court's reliance upon this expert's references to the theories of a clear zone, fixed object or non-recoverable slope, which theories were never included in the notice of claim. Finally, although the happening of the accident itself was witnessed by decedent's nine year old son, a jury could logically infer from other evidence that either the design of the roadway, or its maintenance, posed a dangerous condition that caused or contributed to the accident. Accordingly, neither defendant is entitled to summary judgment dismissing the complaint.
This Court previously denied plaintiff's motion to amend the notice of claim which sought to include these theories (53 Misc.3d 1219 [A], 2016 N.Y. Slip Op. 51743[U], *3–4 [2016] ).
All of decedent's children were passengers in her vehicle at the time of the accident.
To the extent the Town has sought judgment dismissing the County's indemnification cross claims, it has offered no persuasive basis upon which it would be entitled to such relief at this juncture and the same is, therefore, denied.
Based upon the foregoing analysis and upon review of the papers as enumerated hereinafter, it is
ORDERED that the motion for summary judgment of defendant County of Warren is denied in its entirety; and it is further
ORDERED that the cross motion for summary judgment of defendant Town of Hague is denied in its entirety; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.
The above constitutes the Decision and Order of this Court.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated June 5, 2017 and the Notice of Cross–Motion dated June 7, 2017. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513.
Papers reviewed:
1.Affirmation of Joshua D. Lindy, Esq., dated May 30, 2017 with annexed Exhibits "A" through "M" and Memorandum of Law, dated June 5, 2017 (Exhibit "M" is the Affidavit of William E. Logan sworn to May 22, 2017 with annexed Exhibits "A" through "C");
2. Affirmation of M. Randolph Belkin, Esq., dated June 7, 2017 with annexed Exhibits "A" through "F";
3. Opposing Affirmation of Daniel J. Hogan, Esq., sworn to July 14, 2017 with annexed Exhibits "A" through "M";
4. Opposing Affidavit of Joseph J. McHugh, P.E., sworn to July 14, 2017 with annexed Exhibits "A" through "C";
5. Opposing Affirmation of Daniel J. Hogan, Esq., sworn to July 14, 2017 with annexed Exhibits "A" through "N";
6. Opposing Affidavit of James Berry, sworn to April 18, 2017, with three annexed color photographs (Exhibits "2," "3" and "4");
7. Opposing Affirmation of Joshua D. Lindy, Esq., dated July 14, 2017 with annexed Exhibits "A" through "E";
8. Reply Affirmation of Joshua D. Lindy, Esq., dated August 7, 2017 with annexed Exhibits "A" through "E";
9. Reply Affirmation of M. Randolph Belkin, Esq., dated August 3, 2017; and oral argument held before the Court on September 7, 2017, with Joshua D. Lindy, Esq. appearing in support of the motion of defendant County of Warren, M. Randolph Belkin, Esq. appearing in support of the cross-motion of defendant Town of Hague and Daniel J. Hogan, Esq. appearing in opposition thereto.