Opinion
Index 603369/2018
10-26-2020
VINCENT MASSUCCI, Plaintiff, v. TOWN OF HUNTINGTON, DIX HILLS WATER DISTRICT, BERNARD CERRONE and BARBARA CERRONE, Defendants.
DINO J. DOMINA, ESQ. Attorney for Plaintiff NICHOLAS R. CIAPPETTA, ESQ. Attorney for Defendants Town of Huntington and Dix Hills Water District JAMES F. BUTLER & ASSOCIATES Attorney for Defendants Cerrone
Unpublished Opinion
Motion Date 7/15/20
ADJ. Date 9/2/20
DINO J. DOMINA, ESQ. Attorney for Plaintiff
NICHOLAS R. CIAPPETTA, ESQ. Attorney for Defendants Town of Huntington and Dix Hills Water District
JAMES F. BUTLER & ASSOCIATES Attorney for Defendants Cerrone
Mot. Seq. #001 MD #002 MD
ORDER
Hon. DAVID T. REILLY Justice
Upon the following papers read on these e-filed motions for summary judgment: Notice of Motions/Order to Show Cause and supporting papers by Cerrone defendants, dated May 19, 2020 and by Town defendants, dated May 21, 2020; Notice of Cross-Motion and supporting papers _; Answering Affidavits and supporting papers by plaintiff, dated August 17.2020 and by plaintiff, dated August 17.2020; Replying Affidavits and supporting papers bv Town defendants, dated August 27.2020 and by Cerrone defendants, dated September 1. 2020; Other __; it is
ORDERED that these motions are hereby consolidated for purposes of this determination; and it is further
ORDERED that the motion by defendants Bernard Cerrone and Barbara Cerrone for summary judgment dismissing the complaint and cross claims against them is denied; and it is further
ORDERED that the motion by defendants Town of Huntington and Dix Hills Water District for summary judgment dismissing the complaint and cross claims against them is denied.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff, on November 25, 2016, at approximately 2:15 p.m., when he fell into an uncovered water meter hole, approximately 11.5 inches wide and 21 inches deep, on the property located on 5 Foxhurst Road, Huntington, New York, owned by defendants Bernard Cerrone and Barbara Cerrone. The water meter is owned and operated by defendants Town of Huntington and Dix Hills Water District (collectively "Town" defendants).
The Cerrone defendants move for summary judgment dismissing the complaint and cross claims against them on the grounds that the condition of the uncovered water meter hole was open and obvious and not inherently dangerous. The Cerrone defendants allege that they neither created the alleged hazardous condition, nor had actual or constructive notice of any such condition. In support, the Cerrone defendants submit, inter alia, the pleadings and the transcripts of the parties' deposition testimony.
At his deposition, plaintiff testified that after parking on the street, he walked up the driveway of the subject premises to look at a vehicle for sale. He testified that while walking along the side of the vehicle, his left foot stepped in a hole. The hole was located in the lawn and adjacent to the line of the Belgium blocks that outlined the pavement area of the driveway. He testified that prior to the accident, he did not see the hole, and when he stepped on it, there was no cover thereon.
At his deposition, defendant Bernard Cerrone testified that prior to the subject accident, he had never inspected the subject water meter, nor made any complaints to the Town regarding the meter or its lid. He testified that prior to the accident, he was not aware if the lid was on or off. He testified that he learned of the accident when plaintiffs wife called the day after the accident.
At her deposition, defendant Barbara Cerrone testified that no one was home at the time of the accident. She testified that prior to the accident, she had never inspected the subject water meter.
At her deposition, Emily Gleason testified that she is a meter reader for the Dix Hills Water District and that she travels and reads meters per household every three months. She testified that in October 2016, one month prior to plaintiffs incident, she and her partner went to the subject house to read the meter, but she had no recollection as to who read the particular meter at issue. She testified that although the protocol is that a meter reader would open and close the lid using the hand key, she did not know if the lid was locked when she left the house on this occasion.
A landowner has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Basso v Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564 [1976]; Hadidi v City of New York, 181 A.D.3d 795, 118 N.Y.S.3d 440 [2d Dept 2020]; Salomon v Prainito, 52 A.D.3d 803, 861 N.Y.S.2d 718 [2d Dept 2008]). In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that he or she neither created the alleged defective condition nor had actual or constructive notice of its existence (see Kyte v Mid-Hudson Wendico, 131 A.D.3d 452, 453, 15 N.Y.S.3d 147 [2d Dept 2015]; Pampalone v FBE Van Dam, LLC, 123 A.D.3d 988, 1 N.Y.S.3d 155 [2d Dept 2014]). Moreover, whether a dangerous condition exists on real property so as to create liability on the part of the landowner depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury (see Clark v AMF Bowling Ctrs., Inc., 83 A.D.3d 761, 921 N.Y.S.2d 273 [2d Dept 2011]; Moons v Wade Lupe Constr. Co., 24 A.D.3d 1005, 805 N.Y.S.2d 204 [3d Dept 2005]; Fasano v Green-Wood Cemetery, 21 A.D.3d 446, 799 N.Y.S.2d 827 [2d Dept 2005]). A landowner has no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous (see Shermazanova v. AmeriHealth Med., P.C., 173 A.D.3d 796, 103 N.Y.S.3d 160 [2d Dept 2019]; Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d 776, 776, 20 N.Y.S.3d 643 [2d Dept 2015]; Barone v Risi, 128 A.D.3d 874, 9 N.Y.S.3d 620 [2d Dept 2015]). The issue of whether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for a jury (see Gordon v Pitney Bowes Mgt. Servs., Inc., 94 A.D.3d 813, 942 N.Y.S.2d 155 [2d Dept 2012]; Cassone v State of New York, 85 A.D.3d 837, 925 N.Y.S.2d 197 [2011]). "Whether a hazard is open and obvious cannot be divorced from the surrounding circumstances" (Katz v Westchester County Healthcare Corp., 82 A.D.3d 712, 713, 917 N.Y.S.2d 896 [2d Dept 2011]; see Shermazanova v. AmeriHealth Med., P.C., supra; Barone v Risi, supra; Baron v 305-323 E. Shore Rd. Corp., 121 A.D.3d 826, 994 N.Y.S.2d 651 [2d Dept 2014]).
The Cerrone defendants have failed to establish their prima facie entitlement to summary judgment as a matter of law by demonstrating that they neither created or had actual or constructive notice of the alleged dangerous condition (see Saporito-Elliott v United Skates of Am., Inc., 180 A.D.3d 830, 119 N.Y.S.3d 204 [2d Dept 2020]; Gurewitz v City of New York, 175 A.D.3d 658, 664, 109 N.Y.S.3d 167 [2d Dept 2019]). The Cerrone defendants testified that prior to the subject accident, they did not inspect the subject water meter, and that they did not know whether the meter was covered with a lid at that time of the accident. Plaintiff testified that as he walked along the side of the vehicle for sale, he fell into a hole. Thus, there are questions of fact as to whether a dangerous condition existed on the premises so as to create liability on the part of the Cerrone defendants, and if so, whether they had actual or constructive notice of such condition (see Rhodes-Evans v 111 Chelsea LLC, 44 A.D.3d 430, 843 N.Y.S.2d 237 [1st Dept 2007]). They have also failed to establish their prima facie entitlement to judgment as a matter of law, as they did not demonstrate that the condition of the uncovered water meter hole was open, obvious, and not inherently dangerous (see Shermazanova vAmeriHealth Med., P.C., supra; Barone v Risi, supra; Russo v Incorporated Vil. of Atl. Beach, 119 A.D.3d 764, 989 N.Y.S.2d 320 [2d Dept 2014]). Considering the surrounding circumstances, there is an issue of fact whether the hole was open and obvious and not inherently dangerous (see Russo v Home Goods, Inc., 119 A.D.3d 924, 990 N.Y.S.2d 95 [2d Dept 2014]). "A condition that is ordinarily apparent to a person making reasonable use of his or her senses may be rendered a trap for the unwary where the condition is obscured or the plaintiff is distracted" (Katz v Westchester County Healthcare Corp., supra; see Shermazanova v AmeriHealth Med., P.C., supra; Lazic v Trump Vil. Section 3, Inc., supra).
The Town defendants move for summary judgment dismissing the complaint and cross claims against them on the grounds that they neither created the alleged hazardous condition nor had notice of it. They also allege that the condition of the uncovered water meter hole was open and obvious and not inherently dangerous. In support, they submit, inter alia, the pleadings, the transcripts of the parties' testimony, and the affidavits of John Hennessey and Max Hawxhurst.
In his affidavit, Hawxhurst states that he is employed by the Town of Huntington as an automotive equipment operation [sic] for the Dix Hills Water District. He states that although he and Gleason visited the subject house to read the meter on October 13, 2016, he had no recollection as to who actually performed the reading.
A municipality that has enacted a prior written notice provision may not be subjected to liability for injuries caused by a defective or dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies (see Amabile v City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77 [1999]; Brower v County of Suffolk, 185 A.D.3d 774, 127 N.Y.S.3d 145 [2d Dept 2020]). As relevant here, an exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence (see Manzella v County of Suffolk, 163 A.D.3d 796, 798, 82 N.Y.S.3d 49 [2d Dept 2018]; Lopez-Calderone v Lang-Viscogliosi, 127 A.D.3d 1143, 1145, 7 N.Y.S.3d 506 [2d Dept 2015]).
Here, the Town defendants have failed to establish their prima facie entitlement to summary judgment as a matter of law demonstrating that they neither created or had actual or constructive notice of the alleged dangerous condition in the area. The Town's meter readers admitted that they had no recollection as to who actually read the meter on October 13, 2016, several weeks prior to the subject accident. Moreover, Gleason testified that she did not know if the lid of the meter was locked when she left the house. Under these circumstances, there are triable issues of fact as to whether the lid of the subject meter was properly secured when the meter readers left the house and whether plaintiffs accident was a natural and foreseeable consequence of the Town's alleged negligence (see Manzella v County of Suffolk, supra). As discussed above, the Town defendants have also failed to establish their prima facie entitlement to judgment as a matter of law, as they did not demonstrate that the condition of the uncovered water meter hole was open, obvious, and not inherently dangerous (see Shermazanova v Ameri Health Med., P.C., supra; Barone v Risi, supra). The parties' remaining contentions have been considered and are without merit.