Opinion
Index No. 15-608560 CAL. No. 18-01196OT Mot. Seq. 001
08-05-2019
STEPHEN MAJNKEN, Plaintiff, v. TOWN OF BROOKHAVEN, Defendant.
Coello & Lorenzotti, PLLC Attorney for Plaintiff Annette Eaderesto, Esq. Brookhaven Town Attorney
Unpublished Opinion
MOTION DATE 11-9-18
ADJ. DATE 2-22-19
Coello & Lorenzotti, PLLC Attorney for Plaintiff
Annette Eaderesto, Esq. Brookhaven Town Attorney
HON. DENISE F. MOLIA, JUSTICE
DENISE F. MOLIA, JUDGE
Upon the following papers read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers by defendant, dated October 2, 2018; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by plaintiff. dated January 15, 2019: Replying Affidavits and supporting papers' by defendant, dated February 19, 2019: Other___; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by defendant Town of Brookhaven for summary judgment dismissing the complaint is granted.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff Stephen Majnken on May 30, 2014, at approximately 11:30 a.m., as a result of a fall he suffered while walking on Robinwood Drive at its intersection with Margin Drive East, in the Town of Brookhaven, New York. It is alleged that the Town of Brookhaven (the Town) was negligent in causing, allowing and permitting the area where plaintiff fell to be and remain in a dangerous condition, resulting in the plaintiffs fall in a storm drain.
The Town now moves for summary judgment dismissing the complaint due to lack of prior written notice. In support of the motion, it submits, inter alia, copies of the pleadings, the transcript of plaintiffs General Municipal Law § 50-h hearing, the transcripts of the deposition of plaintiff and Marie Angelone, and the affidavits of Linda Sullivan and Marie Angelone. Plaintiff, in opposition to the motion, submits, inter alia, copies of the pleadings, the verified bill of particulars, the transcripts of deposition of plaintiff and Marie Angelone, and the Town's response to plaintiffs document request.
Plaintiff testified at the General Municipal Law § 50-h hearing that on May 30, 2014, as he was walking across Robinwood Drive, a motor vehicle accelerated towards him, so he "jumped" out of the way to avoid the motor vehicle. He testified that in the process of avoiding the vehicle, he tripped or landed in a "pothole" and fell. Plaintiff further testified that a storm drain was contained in the pothole.
Similarly, plaintiff testified at his examination before trial that he was walking om Robinwood Drive when a speeding motor vehicle approached him so he moved out of the way and as a result he stepped into a storm drain. He testified that there was a traffic light at the intersection of William Floyd Parkway and Robinwood Drive, and that the motorist was speeding to make the traffic light.
Marie Angelone was deposed as a witness for the Town. She testified that she has been employed for nine years in the Town's Highway Department, currently as a neighborhood aide. It is part of her job to establish whether or not the Town had prior written notice of the defect or condition which the plaintiff alleges was the cause of his injuries. She testified that she searched the records maintained by the Town after plaintiff filed his notice of claim. Ms. Angelone testified that Robinwood Drive is maintained by the Town's Highway Department. She explained that she researched plaintiffs notice of claim which revealed that plaintiff tripped and fell over a storm drain that was maintained by the County of Suffolk. She further testified that she opened a work order as a result of plaintiff s notice of claim. Ms. Angelone then testified that a Town highway foreman visited the accident site and generated a report that indicated that the storm drain was maintained by the County of Suffolk.
Ms. Angelone further testified that when the town would pave a road such as Robinwood Drive, it would call the County of Suffolk and request that the grate of the storm drain be raised to meet the elevated roadway. She indicated that this communication would be made prior to the paving of the roadway. She also testified that she was not aware of when Robinwood Drive was paved before plaintiffs accident in 2014. Ms. Angelone testified in general when the Town paves a road, it hires a contractor. In addition, she testified that her search revealed no written notice of any defect with regard to the storm drain on Robinwood Drive at or near Margin Drive East.
In her affidavit, Marie Angelone reiterates that her search of the records of the Town's Highway Department for the five years prior to plaintiffs accident revealed no written notice of any defect with regard to the storm drain on Robinwood Drive at or near Margin Drive East. In addition, Ms. Angelone states in her affidavit that the Town does not and did not create, own, maintain, manage, or control the storm drain on Robinwood Drive at or near Margin Drive East. Furthermore, the affidavit of Linda Sullivan, an employee in the Town Clerk's office, sets forth that she had searched the index book and files maintained by her office for the three prior years and found no written complaints with regard to the subject storm drain.
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 (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Or., 64 N.Y.2d 851, 487 N.Y.S.2d 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 offer 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 N.Y.2d 557, 427 N.Y.S.2d 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 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001]; O'Neill v Town of Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept 1987]).
The 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 that caused the plaintiffs accident. Section 84.1 A of the Brookhaven Town Code states as follows:
Prior written notice required. No civil action shall be commenced against the Town of Brookhaven or the Superintendent of Highways for damages or injuries to persons or property sustained by reason of the defective, out-of-repair, unsafe, dangerous or obstructed condition of any highway, street, ...of the Town of Brookhaven, unless, previous to the occurrence resulting in such damages or injuries, written notice of such defective, out-of-repair, unsafe, dangerous or obstructed condition, specifying the particular place and location was actually given to the Town Clerk or Town Superintendent of Highways and there was a failure or neglect within a reasonable time, after the giving of such notice, to repair or remove the defect, danger or obstruction complained of...
Section 84.1 B of the Brookhaven Town Code states as follows:
In the absence of written notice as required above, no civil claim shall be maintained against the Town of Brookhaven; nor shall any civil claim be maintained based on an allegation that such defect, danger or obstruction existed for so long a period of time that the same should have been discovered and remedied in the exercise of reasonable care and diligence; nor a claim that any Town employee possessed actual notice of such defect, danger or obstruction unless written notice is filed with the Town Clerk as required above.
Where, as here, a municipality has enacted a prior written notice statute pursuant to Town Law Article 65, it may not be subjected to liability for personal injuries caused by an improperly maintained roadway or sidewalk unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies (see Barnes v Incorporated Vil. of Port Jefferson, 120 A.D.3d 528, 990 N.Y.S.2d 841 [2d Dept 2014]; Carlucci v Village of Scarsdale, 104 A.D.3d 797, 961 N.Y.S.2d 318 [2d Dept 2013]; Wilkie v Town of Huntington, 29 A.D.3d 898, 816 N.Y.S.2d 148 [2d Dept 2006]; Lopez v G&J Rudolph, 20 A.D.3d 511, 799 N.Y.S.2d 254 [2d Dept 2005]; Ganzenmuller v Incorporated Vil. of Port Jefferson, 18 A.D.3d 703, 795 N.Y.S.2d 744 [2d Dept 2005]). "The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property" (Gonzalez v Town of Hempstead, 124 A.D.3d 719, 2 N.Y.S.3d 527 [2d Dept 2015]; Forbes v City of New York, 85 A.D.3d 1106, 926 N.Y.S.2d 309 [2d Dept 2011 ]). The affirmative negligence exception is limited to work by the municipality that immediately results in the existence of a dangerous condition (see Yarborough v City of New York, 10 N.Y.3d 726, 853 N.Y.S.2d 261 [2008]; Sola v Village of Great Neck Plaza, 115 A.D.3d 661, 981 N.Y.S.2d 545 [2d Dept 2014]).
"[T]he prima facie showing which a defendant must make on a motion for Summary Judgment is governed by the allegation of liability made by the plaintiff in the pleadings" (Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 [2d Dept 2010]). Plaintiff alleged, in his pleadings, that the Town was negligent in the design, construction and installation of storm drain and roadway and it thereby created the condition that caused plaintiffs accident. Thus, to establish it prima facie entitlement to judgment as a matter of law, the Town was required to demonstrate, prima facie, both it did not have prior written notice of the alleged defect, and that it did not created the alleged defect (see Gutierrez-Contreras v Village of Port Chester, 172 A.D.3d 1333, 101 N.Y.S.2d 149 [2d Dept 2019]; Treta v City of Long Beach, 157 A.D.3d 747, 69 N.Y.S.3d 58 [2d Dept 2018]; Loghy v Village of Scarsdale, 149 A.D.3d 714, 53 N.Y.S.3d 318 [2d Dept 2017]).
Moreover, evidence such as telephone complaints and work orders is insufficient to raise an issue of fact. Any verbal complaints or other internal documents generated by the Town are insufficient to satisfy the statutory requirement (see Wilkie v Town of Huntington, 29 A.D.3d 898, 816 N.Y.S.2d 148 [2d Dept 2006]; Cenname v Town of Smithtown, 303 A.D.2d 351, 755 N.Y.S.2d 651 [2d Dept 2003]). A verbal complaint reduced to writing by a municipality does not constitute prior written notice (see Tortorici v City of New York, 131 A.D.3d 959, 16 N.Y.S.3d 572 ; McCarthy v City of White Plains, 54 A.D.3d 828, 863 N.Y.S.2d 500 [2d Dept 2008]; Akcelik v Town of Islip, 38 A.D.3d 483, 831 N.Y.S.2d 491 [2d Dept 2007]; Cenname v Town of Smithtown, supra). Prior written repair orders do not constitute prior written notice of prior defects (Lopez v Gonzalez, 44 A.D.3d 1012, 845 N.Y.S.2d 91 [2d Dept 2007]; McCarthy v City of White Plains, supra; Dalton v City of Saratoga Springs, 12 A.D.3d 899, 901, 784 N.Y.S.2d 702 [3d Dept 2004]).
Here, the testimony of Marie Angelone and the affidavits of Marie Angelone and Linda Sullivan establish that there was no prior written notice regarding the subject storm drain filed with either the Town Clerk's office or with the Highway Department, as required by the Town ordinance (see Velho v Village of Sleepy Hollow, 119 A.D.3d 551, 987 N.Y.S.2d 879 [2d Dept 2014]; Petrillo v Town of I Hempstead, 85 A.D.3d 996, 925 N.Y.S.2d 660 [2d Dept 2011] Pagano v Town of Smithtown, 74 A.D.3d 1304 904 N.Y.S.2d 729 [2d Dept 2010] LiFrieri v Town of Smithtown 72 A.D.3d 750, 898 N.Y.S.2d 629 [2d Dept 2010]). Likewise, the affidavit of Marie Angelone has established that the Town did not create, own, maintain manage or control the storm drain in question and therefore it not create the alleged dangerous condition (see Gutierrez-Contreras v Village of Port Chester, supra; Trela v City of Long Beach, supra; Loghy v Village of Scarsdale, supra). The Town having established the lack of prior written notice and that it did not create the alleged dangerous condition, 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 A.D.3d 1096, 858 N.Y.S.2d 797 [3d Dept 2008]; Betzold v Town of Babylon, 18 A.D.3d 787, 796 N.Y.S.2d 680 [2d Dept 2005]; Brooks v Village of Horseheads, 14 A.D.3d 756, 788 N.Y.S.2d 437 [3d Dept 2005]).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiffs contention that the Town affirmatively created the alleged dangerous condition in the roadway is without support in the record, and speculative in any event (see Gonzalez v Town of Hempstead, supra; Smith v City of Mount Vernon, 101 A.D.3d 847, 955 N.Y.S.2d 635 [2d Dept 2012]; Weinberg v City of New York, 96 A.D.3d 736, 945 N.Y.S.2d 758 [2d Dept 2012]). Plaintiff having failed to raise an issue of fact, the Town is entitled to summary judgment (see Gonzalez v Town of Hempstead, supra; Forbes v City of New York, supra).
In light of the foregoing, the motion by defendant Town of Brookhaven for summary judgment dismissing the complaint is granted.