Opinion
14–1744
07-27-2016
Randall M. HINTON, Plaintiff, v. VILLAGE OF PULASKI, Defendant.
Joel Melnicoff, Esq., Attorney for the Plaintiff, Randall M. Hinton Ryan L. Abel, Esq., Lynch Law Office, PLLC, Attorney for the Defendant, Village of Pulaski
Joel Melnicoff, Esq., Attorney for the Plaintiff, Randall M. Hinton
Ryan L. Abel, Esq., Lynch Law Office, PLLC, Attorney for the Defendant, Village of Pulaski
James W. McCarthy, J.
The above-captioned matter is before this court pursuant to defendant, Village of Pulaski's motion for summary judgment [ New York Civil Practice Law and Rules § 3212 ]. Following oral argument, the court reserved decision. Having reviewed the submissions of the parties, for the reasons set forth below, this court makes the following Findings of Fact and Conclusions of Law.
Findings of Fact :
The facts underlying the instant action are for the most part not in dispute. Simply stated, plaintiff alleges that at approximately 11:00am on October 19, 2013, he was descending an exterior stairway leading from a municipal parking lot to Riverview Drive in the Village of Pulaski. As he descended the stairs, he lost his footing and fell, sustaining injuries. Following completion of discovery and the filing of the Trial Note of Issue, defendant now moves for summary judgment dismissing the complaint. Defendant advances four theories in support of summary judgment, each further detailed below:
[1] Plaintiff is unable to identify the specific cause of his injuries;
[2] Plaintiff has failed to plead and prove prior written notice to the village of the alleged defective condition;
[3] Constructive Notice is insufficient to show prior written notice of a defect; and
[4] Plaintiff cannot demonstrate the village's constructive notice of the alleged defective condition.
Turning first to defendant's argument that the plaintiff cannot identify the specific cause of his fall, counsel for the Village of Pulaski argues that his claim may not be based on the mere occurrence of an event, rather plaintiff bears the burden of showing negligence. Citing to the testimony of the plaintiff, he alleges that when the plaintiff was asked directly: "Can you tell me what specifically caused your fall?" he responded : "I don't know[,]" and then continued: "It could have been one of the ruts or rotten timber, or it could have been one of those spikes. I don't know." Here, counsel argues that plaintiff could only speculate as to the cause of his fall, and it is just as likely that the accident was caused by some other factor unrelated to negligence of the defendant, a misstep or loss of balance by the plaintiff. In further support of the motion based upon these grounds, counsel argues that when plaintiff was asked whether he tripped over a post depicted in a photograph, he testified that: "I couldn't tell you if this is the one or not[,]" and further testified that: "I don't have a memory of looking at the spike before I tripped over it." Based on the foregoing, counsel for the defendant alleges that in a slip and fall plaintiff's inability to identify the cause of his or her fall is fatal to his or her case. Where it is just as likely that some other factor unrelated to defendant's negligence caused the fall, then it is appropriate to grant summary judgment to the defendant.
Counsel for the defendant village next states that the plaintiff's complaint must be dismissed insofar as he failed to plead and prove prior written notice of the alleged defective condition as required by the Village of Pulaski Code. Counsel avers that compliance with the prior written notice requirement is necessary insofar as the area in which the defendant fell connected a municipal parking lot to a village street, and thus the stairs on which plaintiff fell are the functional equivalent, in essence an extension of a sidewalk and are thus covered under the code. In further support of the motion, counsel for the defendant included affidavits from the Pulaski Village Clerk and the Highway Superintendent demonstrating that the municipality did not have prior written notice of the alleged defective condition. Defendant further avers that the plaintiff may not rely on an argument that the village had constructive notice of the alleged defective condition to satisfy the prior written notice requirement. Thus insofar as the plaintiff failed to demonstrate compliance with the prior written notice requirement the complaint must be dismissed.
Finally, defendant alleges that if the court finds the village's prior written notice requirement inapplicable, that the complaint must be dismissed insofar as plaintiff has failed to demonstrate constructive notice of the alleged defective condition, more particularly that the plaintiff cannot demonstrate that the village had knowledge and a reasonable period of time to discover and remedy the condition alleged to have caused the plaintiff's fall.
In opposition to defendant's motion to dismiss based on plaintiff's alleged inability to identify the cause of his fall, counsel for the plaintiff proffers the affidavit of plaintiff who details the circumstances surrounding the alleged occurrence. In that affidavit, plaintiff avers that:
On the day of the accident, as a descended the stairs to the best of my recollection, I was a third of the way down the stairs when I suddenly fell and I was seriously injured, I do not know the specific cause of my fall (e.g. whether I tripped on one of those ruts, rotten timbers or one of those railroad spikes) as I was not thinking about falling at that time. I fell head over heels and I landed at the bottom of the stairway.
Plaintiff's counsel further points to photographs taken shortly after the accident to show the deteriorated condition of the stairway at the time of the alleged occurrence, showing numerous spikes protruding from the railroad tie stairs, the irregular nature of the stairs and the broken down railing running alongside the stairs, arguing that it may be reasonably inferred that the condition of the stairs caused his fall.
On the issue of prior written notice, counsel for the plaintiff argues that there is an issue or question of fact as to whether the parking lot qualified as a highway and the stairs as a sidewalk for the purpose of prior written notice, and that in order for the defendant to succeed on its motion, it must show that the stairs are integrated with or serve as part of a connected standard sidewalk. Counsel avers that in the instant action there is a question of fact insofar as the stairs are not integrated with or part of a connected standard sidewalk and the stairs were grassy and unimproved by concrete, asphalt or any other surface or feature that any reasonable litigant, lawyer or judge would characterize as a sidewalk.
On the issue of constructive notice, citing to the photographs taken of the stairs on which the alleged occurrence took place a short period of time after the fall, plaintiff alleges that such photographs may, because of the deteriorated condition of the stairs, be used to demonstrate constructive notice to the defendant of the alleged defective condition.
In reply, counsel for the defendant first alleges that the plaintiff has established nothing more than the possibility that his fall was caused by the alleged defective condition in the stair and that his allegation that it is reasonable to conclude that water ran down the stairs [from the rain that day] and eroded the stairs is based on speculation. Further, he avers that plaintiff's allegation that he suddenly fell without more is insufficient to establish an issue of fact as to causation. On the issue of prior written notice counsel for the Village of Pulaski argues in sum and substance that the cases cited by plaintiff on the issue of whether the stairway was the functional equivalent of a sidewalk are inapposite insofar as the cases cited involve unimproved paths within municipal parks. In contrast, in the instant action, the stairs were improved by steps and railings leading directly from a municipal parking lot to Riverview Drive below, and the stairway at issue directed pedestrians to or from a public building or structure and thus served the equivalent of a sidewalk. Lastly, on the issue of constructive notice, counsel for the defendant argues that dismissal of the complaint is appropriate insofar as the plaintiff cannot identify the cause of his fall and a general awareness of the presence of a dangerous condition is insufficient to establish the village's constructive notice of the alleged dangerous condition.
Conclusions of Law :
Distilled to its essence, defendant's motion for summary judgment is based on three arguments, first that plaintiff's proof of causation is too speculative to support a cause of action for negligence, second that the plaintiff has failed to plead and prove compliance with the village's prior written notice requirement, and that the plaintiff has failed to demonstrate that the defendant had constructive notice of the alleged dangerous condition. Each argument, to the extent necessary is addressed below.
Turning first to the issue of evidence of causation, it is well settled that:
‘In a slip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall’ without engaging in speculation ( Altinel v. John's Farms , 113 AD3d 709, 709–710 ; see , Ash v. City of New York , 109 AD3d 854, 855 ; Smart v. Zambito , 85 AD3d 1721, 1721 ). Here, we conclude that defendants failed to establish as a matter of law that the cause of plaintiff's fall was speculative (see Lane v. Texas Roadhouse Holdings, LLC , 96 AD3d 1364, 1364–1365 ; Gafter v. Buffalo Med. Group, P.C. , 85 AD3d 1605, 1606 ; Nolan v. Onondaga County , 61 AD3d 1431, 1432 ). ‘Although [mere] conclusions based upon surmise, conjecture, speculation or assertions are without probative value ..., a case of negligence based wholly on circumstantial evidence may be established if the plaintiffs show[ ] facts and conditions from which the negligence of the defendant[s] and the causation of the accident by that negligence may be reasonably inferred’ ( Seelinger v. Town of Middletown , 79 AD3d 1227, 1229 [2010] [internal quotation marks omitted] ).
Dixon v. Superior Discounts & Custom Muffler ex rel. Jones, 118 AD3d 1487, 1487–88, (4th Dept. 2014). In support of its motion, citing to plaintiffs' deposition and 50–h hearing testimony, defendant's counsel alleges that plaintiff is unable to identify what caused him to fall and thus his testimony with respect to causation is speculative. Further it is alleged that it is just as likely that the accident was caused by some other factor unrelated to negligence of the defendant, a misstep or loss of balance by the plaintiff, thus entitling the defendant summary judgment. Even assuming arguendo that such testimony is sufficient to meet defendant's initial burden of proof, the court finds that the defendant is not entitled to summary judgment on the issue of causation.
In, Swietlikowski v. Vill. of Herkimer , 132 AD3d 1406, (4th Dept. 2015), the Appellate Division, Fourth Department held:
Defendant further contends that it was entitled to summary judgment dismissing the complaint because plaintiff could not identify the cause of his fall. We reject that contention. Although a defendant " ‘may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall’ without engaging in speculation" ( Dixon v. Superior Discounts & Custom Muffler , 118 AD3d 1487, 1487 ; see Hunt v. Meyers , 63 AD3d 685, 685, lv. denied 13 NY3d 712 ), we conclude that defendant failed to meet that burden here (see Smart v. Zambito , 85 AD3d 1721 ; see generally Zuckerman v. City of New York , 49 NY2d 557, 562 ). In support of its motion, defendant submitted plaintiff's deposition testimony and plaintiff's testimony from a hearing pursuant to General Municipal Law § 50–h, in which plaintiff testified that the accident occurred after the front wheel of the bicycle hit something on the roadway. Although plaintiff could not remember seeing the object with which he collided, he testified that the accident occurred in the immediate vicinity of a gap in the pavement adjacent to a water valve box cover, "thereby rendering any other potential cause of [his] fall ‘sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence’ " ( Nolan v. Onondaga County , 61 AD3d 1431, 1432 ; see Paternostro v. Advance Sanitation, Inc. , 126 AD3d 1376, 1377 ; Dixon , 118 AD3d at 1488.
Id. at 1407 [emphasis added], see also, Goodfrey v. Town of Hurley , 68 AD3d 1527 (3rd Dept. 2009). Here, in opposition to the instant motion plaintiff submitted an affidavit in which he avers that:
On the day of the accident, as a descended the stairs to the best of my recollection, I was a third of the way down the stairs when I suddenly fell and I was seriously injured, I do not know the specific cause of my fall (e.g. whether I tripped on one of those ruts, rotten timbers or one of those railroad spikes)...
The affidavit, coupled with photographs taken closely after the alleged occurrence, showing the generally deteriorated condition of the stairway on which the plaintiff fell: "... rendering any other potential cause of her fall: ‘sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence’ ( Artessa v. City of Utica , 23 AD3d 1148, 1148 [internal quotation marks omitted]; see Schneider v. Kings Hwy. Hosp. Ctr. , 67 NY2d 743, 744 ; see also Foreman v. Coyne Textile Servs. of Buffalo , 284 AD2d 912 [2001] )." Nolan v. Onondaga Cty. , 61 AD3d 1431, 1432, (4th Dept. 2009). Thus, in light of the foregoing, defendant's motion for summary judgment based upon causation is, in all respects denied.
Turning next to the issue of the necessity of prior written notice of the alleged defective condition of the stairway, the court's decision hinges upon a determination of whether the village has established as a matter of law that the stairway upon which the plaintiff fell may be considered the functional equivalent of a sidewalk [see, Woodson v. City of New York , 93 NY2d 936 (1999) ]. In the instant action, it cannot be disputed that the stairway on which the plaintiff fell connected a municipal parking lot to a street owned by the defendant, Village of Pulaski. The evidence further establishes that the area in which the plaintiff fell was improved by railroad ties and a railing, not, as the cases cited by plaintiff's counsel, simply a dirt path.
In Donnelly v. Village of Perry , 88 AD2d 764 (4th Dept. 1982), the Appellate Division, Fourth Department was faced with the following factual scenario:
On oral argument the parties stipulated that no notice of a defective condition was ever given to the village clerk. It was also confirmed that in front of defendant Zanghi's Market there are two sets of steps, one connecting the portion of the street used for vehicular traffic to the public sidewalk and the other extending from the public sidewalk up to the entrance to Zanghi's Market. The parties further stipulated that the steps are for pedestrian use and that the accident happened on the steps located between that part of the street used for vehicular traffic and the public sidewalk.
Id. In reversing the trial court, the Appellate Division, Fourth Department held:
The steps on which this accident occurred provide a passageway for the public, are the equivalent of a sidewalk and must be viewed as part of the street. Accordingly, plaintiff's inability to allege that written notice of the dangerous condition was given to the village requires dismissal of the complaint against the village ( Barry v. Niagara Frontier Tr. System , 35 NY2d 629 ).
Id. at 765; see also , Fischer v. Westchester Cty. , 24 AD3d 498, 499(2nd Dept. 2005) ; Youngblood v. Vill. of Cazenovia , 118 Misc 2d 1020, 1021–23 (Sup. Ct. Madison Co. 1982), aff'd , 93 AD2d 962 (3rd Dept. 1983). Here, the court finds that proof prior written notice of the alleged defective condition is a condition precedent to commencement of the instant action since the stairway on which the plaintiff fell was the functional equivalent of a sidewalk, and accordingly in the absence of proof of such prior written notice grants defendant's motion for summary judgment dismissing plaintiff's complaint.
Had the court reached the issue of constructive notice, it would have denied defendant's motion insofar as it failed to meet its initial burden of proof. [see, Rachlin v. Michaels Arts & Crafts, 118 AD3d 1391, 1392–93 (4th Dept. 2014) ; Wilson v. 100 Carlson Park, LLC , 113 AD3d 1118, 1119 (4th Dept. 2014) ; McGough v. Cryan, Inc. , 111 AD3d 900, 900–01 (4th Dept. 2013).
The foregoing constitutes the Decision of this court. Counsel for the defendant Village of Pulaski is to submit an Order consistent herewith within ten days of receipt.