Opinion
535231
03-16-2023
Russell HERLING, Appellant, v. CALLICOON RESORT LODGES, INC., et al., Respondents.
Sim & Depaola, LLP, Bayside (Sang J. Sim of counsel), for appellant. Law Office of Brian Rayhill, Elmsford (Jeffrey T. Culkin of counsel), for Callicoon Resort Lodges, Inc. and another, respondents. Drake Loeb PLLC, New Windsor (Brendan T. Fitzpatrick of Gerber Ciano Kelly Brady LLP, Garden City, of counsel), for Town of Delaware, respondent.
Sim & Depaola, LLP, Bayside (Sang J. Sim of counsel), for appellant.
Law Office of Brian Rayhill, Elmsford (Jeffrey T. Culkin of counsel), for Callicoon Resort Lodges, Inc. and another, respondents.
Drake Loeb PLLC, New Windsor (Brendan T. Fitzpatrick of Gerber Ciano Kelly Brady LLP, Garden City, of counsel), for Town of Delaware, respondent.
Before: Garry, P.J., Egan Jr., Lynch, Pritzker and McShan, JJ.
MEMORANDUM AND ORDER
Egan Jr., J. Appeals (1) from an order of the Supreme Court (Mark M. Meddaugh, J.), entered February 7, 2022 in Sullivan County, which granted defendants’ motions for summary judgment dismissing the complaint, and (2) from a judgment of said court, entered March 2, 2022 in Sullivan County, which granted a motion by defendant Town of Delaware for costs.
In August 2016, plaintiff and his friend were staying at a resort operated by defendant Villa Roma Resort and Conference Center, Inc. for a weekend getaway. At about 8:00 p.m. on Saturday, August 27, 2016, the pair left the resort's hotel to have dinner at a restaurant near the resort's golf course. To reach the restaurant, they walked up Villa Roma Road, a two-lane public highway maintained by defendant Town of Delaware, but at some point left the pavement and began to walk up a grassy area adjoining the road. In doing so, they soon encountered a grated catch basin about four feet off of the road shoulder that opened onto a stone-lined ditch running about six inches below the lip of the grate. Plaintiff was allegedly injured when he walked onto the grate, slipped and fell down.
In August 2017, plaintiff commenced this personal injury action against, among others, Villa Roma and a related entity, defendant Callicoon Resort Lodges, Inc., (hereinafter collectively referred to as the resort defendants), as well as the Town, to recover for his alleged injuries. Following joinder of issue and discovery, the Town moved for summary judgment dismissing the complaint and cross-claim against it. The resort defendants separately moved for summary judgment dismissing the complaint and cross-claim against them. In February 2022, Supreme Court issued an order in which it granted both motions and dismissed the complaint in its entirety. Plaintiff appeals from that order, as well as an ensuing judgment awarding costs to the Town.
Plaintiff also asserted a claim against the County of Sullivan, which he discontinued in 2020.
We affirm. The fact that plaintiff fell and was purportedly injured does not render defendants liable; rather, he must "connect [his] injury to a breach of duty by defendant[s] and ... show that defendant[s’] acts were ‘a substantial cause of the events which produced the injury’ " ( Russell v. Hepburn Hosp., 173 A.D.2d 985, 986–987, 569 N.Y.S.2d 826 [3d Dept. 1991], quoting Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1981] ; see Foley v. Golub Corp., 252 A.D.2d 905, 908, 676 N.Y.S.2d 308 [3d Dept. 1998] ). With regard to the issue of duty, the Town had "a nondelegable duty to maintain its roads and highways in a reasonably safe condition" ( Lopes v. Rostad, 45 N.Y.2d 617, 623, 412 N.Y.S.2d 127, 384 N.E.2d 673 [1978] ; see Bottilico v. State of New York, 59 N.Y.2d 302, 305, 464 N.Y.S.2d 707, 451 N.E.2d 454 [1983] ; Sherman v. County of Cortland, 18 A.D.3d 908, 910, 795 N.Y.S.2d 121 [3d Dept. 2005], lv denied 5 N.Y.3d 713, 806 N.Y.S.2d 164, 840 N.E.2d 133 [2005] ), but that duty did not extend to protecting travelers from nearby "utility poles, drainage ditches, culverts, trees and shrubbery" where travel was "neither contemplated nor foreseeable" ( Tomassi v. Town of Union, 46 N.Y.2d 91, 97, 412 N.Y.S.2d 842, 385 N.E.2d 581 [1978] ). The resort defendants had a similar "duty to exercise reasonable care under the circumstances in maintaining [the surrounding] property in a safe condition" ( Kush v. City of Buffalo, 59 N.Y.2d 26, 29, 462 N.Y.S.2d 831, 449 N.E.2d 725 [1983] ; Kirby v. Summitville Fire Dist., 152 A.D.3d 926, 927, 58 N.Y.S.3d 748 [3d Dept. 2017] ), with "[t]he existence and scope of [that] duty ... [being] a legal question for the courts to determine by analyzing the relationship of the parties, whether the plaintiff was within the zone of foreseeable harm, and whether the accident was within the reasonably foreseeable risks" ( Powers v. 31 E 31 LLC, 24 N.Y.3d 84, 94, 996 N.Y.S.2d 210, 20 N.E.3d 990 [2014] ; see Parke v. Dollar Tree, Inc., 155 A.D.3d 1489, 1490, 65 N.Y.S.3d 355 [3d Dept. 2017] ). The duty of both the Town and the resort defendants "is measured in terms of foreseeability," in other words, and foreseeability "may only be determined as a matter of law where ‘a single inference can be drawn from the undisputed facts’ " ( Prusky v. McCarty, 126 A.D.3d 1171, 1171, 5 N.Y.S.3d 594 [3d Dept. 2015], quoting Perrelli v. Orlow, 273 A.D.2d 533, 534, 708 N.Y.S.2d 742 [3d Dept. 2000] ; see Tomassi v. Town of Union, 46 N.Y.2d at 97, 412 N.Y.S.2d 842, 385 N.E.2d 581 ; Kirby v. Summitville Fire Dist., 152 A.D.3d at 927, 58 N.Y.S.3d 748 ).
The record here is devoid of proof to suggest that pedestrians regularly walked over the grated catch basin toward the drainage ditch or that either the Town or the resort defendants had reason to believe that they would do so. To the contrary, the Town's highway superintendent averred that the drainage ditch was "not a pedestrian walkway and was never intended to be," while a professional engineer retained by the Town opined that the grate and ditch were part of the road's drainage system and "not intended to be walked on," particularly since "[a] reasonably safe walkway was available to" pedestrians four feet away on the road's shoulder. The resort defendants, in turn, offered the deposition testimony of Villa Roma's vice president, who stated that pedestrians had no need to traverse that area and that Villa Roma had received no prior complaints about either the grate or accidents involving it. The resort defendants further offered the affidavit of a safety consultant who opined that the grate and ditch were located off the road and posed no threat to pedestrians, as well as that a "drainage ditch is not a public walkway or a means of egress" and that it would have been "virtually impossible" for plaintiff or any other pedestrian to miss seeing the grate or the rocky ditch beyond it. This proof was sufficient to establish that defendants lacked "actual or constructive notice that [resort] guests were using the" grate and ditch "as a path or walkway" ( Kirby v. Summitville Fire Dist., 152 A.D.3d at 928, 58 N.Y.S.3d 748 ; see Pusey v. Stark, 166 A.D.3d 918, 919, 88 N.Y.S.3d 422 [2d Dept. 2018] ; Hendricks v. Lee's Family, Inc., 301 A.D.2d 1013, 1013–1014, 754 N.Y.S.2d 454 [3d Dept. 2003] ).
There is considerable dispute in the record as to how well lit the area was at the time of plaintiff's accident, with plaintiff indicating that he either did not see or did not remember seeing the grate, the large rock placed immediately next to it or the smaller rocks in the ditch beyond it before his fall. Accepting that this off-road area was so dark that anyone walking there could not see the ground, however, it is difficult to perceive how either the Town or the resort defendants could have reasonably foreseen that it would regularly be used for that purpose.
Plaintiff, in response, stated that he elected to leave the road because he wanted to avoid speeding or swerving vehicles and that he saw other resort guests "scattered about" on the road, shoulder and adjacent grass. He further proffered the affidavit of a professional engineer who stated, in conclusory fashion, that the accident occurred "in a pedestrian area" because the grate was on the resort grounds and adjacent to the road and driveway. Although we view this proof in the light most favorable to plaintiff as the nonmoving party (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ), it does not suggest that pedestrians regularly used the grate and ditch as a pathway or that any defendant should have been aware of that use. Thus, as the evidence established, as a matter of law, that plaintiff's travel over the grate and into the ditch "on the night in question was not reasonably foreseeable," and plaintiff failed to raise a question of fact in response, the motions for summary judgment by the Town and the resort defendants were properly granted ( Kirby v. Summitville Fire Dist., 152 A.D.3d at 928, 58 N.Y.S.3d 748 ; see Pusey v. Stark, 166 A.D.3d at 919, 88 N.Y.S.3d 422 ; Elwood v. Alpha Sigma Phi Iota Ch. of Alpha Sigma Phi Fraternity, Inc., 62 A.D.3d 1074, 1076–1077, 878 N.Y.S.2d 499 [3d Dept. 2009], lv denied 13 N.Y.3d 711, 2009 WL 3853189 [2009] ; Baczkowski v. Zurn, 235 A.D.2d 894, 895, 652 N.Y.S.2d 850 [3d Dept. 1997] ).
Plaintiff's remaining arguments, as well as the alternative grounds for affirmance cited by defendants, are academic in view of the foregoing.
Garry, P.J., Lynch, Pritzker and McShan, JJ., concur.
ORDERED that the order and the judgment are affirmed, without costs.