Opinion
INDEX No. 17-603037
05-15-2020
BLANCHE POPE, Plaintiffs, v. ALFONSO TROTTA, ROSE ANN TROTTA, AL'S REPAIR CENTER, INC., 212 BANGOR STREET CORP., LEO LASSITER and GLENDA LASSITER,, Defendant. AL'S REPAIR CENTER, INC., 212 BANGOR STREET CORP., Third-Party Plaintiff, v. TOWN OF BABYLON, Third-Party Defendant. LEO LASSITER and GLENDA LASSITER, Second Third-Party Plaintiff, v. TOWN OF BABYLON, Second Third-Party Defendant.
RAWLINS FIRM, PLLC Attorneys for Plaintiff 300 Cadman Plaza West, 12th Floor Brooklyn, New York 11201 MARK E. WEINBERGER, ESQ. Attorney for Plaintiff 50 Merrick Road Rockville Centre, New York 11570 PICCIANO & SCAHILL, P.C. Attorneys for Defendants Alfonso Trotta and Rose Ann Trotta 1065 Stewart Avenue, Suite 210 Bethpage, New York 11714 VIGORITO BARKER PATTERSO NICHOLS & PORTER LLP Attorney for Third-Party Plaintiffs/Defendants Al's Repair Center, Inc., and 212 Bangor Street Corp. 115 E. Stevens Avenue, Suite 206 Valhalla, New York 10595 LEWIS JOHS AVALLONE AVILES LLP Attorney for Third-Party Defendants Town of Babylon One CA Plaza, Suite 225 Islandia, New York 11749 BARTLETT LLP Attorneys for Defendants/Second Third-Party Plaintiff 320 Carleton Avenue, Suite 7500 Central Islip, New York 11722 LESTER SCHWAB KATZ & DWYER LLP Attorneys for Defendants Utica National Assurance Company and Utica National Insurance of Ohio i/s/h/a Uitca National Insurance Company 100 Wall Street New York, New York 10005 Acme Home Insurance Co. 40 Florgate Road Farmingdale, New York 11735
PRESENT: Hon. CHERYL A. JOSEPH Acting Justice Supreme Court MOTION DATE: 3-27-19 (005) 5-20-19 (006)
Mot. Seq. # 005 - MG # 006 - MG RAWLINS FIRM, PLLC
Attorneys for Plaintiff
300 Cadman Plaza West, 12th Floor
Brooklyn, New York 11201 MARK E. WEINBERGER, ESQ.
Attorney for Plaintiff
50 Merrick Road
Rockville Centre, New York 11570 PICCIANO & SCAHILL, P.C.
Attorneys for Defendants Alfonso Trotta and Rose
Ann Trotta
1065 Stewart Avenue, Suite 210
Bethpage, New York 11714 VIGORITO BARKER PATTERSO NICHOLS &
PORTER LLP
Attorney for Third-Party Plaintiffs/Defendants
Al's Repair Center, Inc., and 212 Bangor Street Corp.
115 E. Stevens Avenue, Suite 206
Valhalla, New York 10595 LEWIS JOHS AVALLONE AVILES LLP
Attorney for Third-Party Defendants Town of Babylon
One CA Plaza, Suite 225
Islandia, New York 11749 BARTLETT LLP
Attorneys for Defendants/Second Third-Party Plaintiff
320 Carleton Avenue, Suite 7500
Central Islip, New York 11722 LESTER SCHWAB KATZ & DWYER LLP
Attorneys for Defendants Utica National Assurance
Company and Utica National Insurance of Ohio i/s/h/a
Uitca National Insurance Company
100 Wall Street
New York, New York 10005 Acme Home Insurance Co.
40 Florgate Road
Farmingdale, New York 11735
CORRECTED DECISION
Upon the following papers numbered 63 - 105 read on these motions: Notice of Motion and supporting papers 63-69; Affirmation in Opposition and supporting papers 74-77; Affirmation in Reply and supporting papers 78-85; Notice of Motion and supporting papers 86-89; Affirmation in Opposition and supporting papers 100, 102; Affirmation in Reply and support 101, 103-105; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED, that the motion by the Defendant Town of Babylon's motion to dismiss Defendant/Third Party Plaintiffs', Al's Repair Center, Inc. and 212 Bangor Corp. Third Party Summons and Complaint, as well as any and all cross-claims as to the Town specified herein is converted to a motion for summary judgment and is hereby granted.
BRIEF BACKGROUND
The above referenced action arises out a pedestrian/vehicular accident that occurred on or about January 29, 2015. Plaintiff alleges in sum and substance that she struck and injured by a motor vehicle, to wit, a 1989 GMC truck with an attached snow plow, operated by Defendant Alfonso Trotta. The accident took place on the northbound side of New Highway north of the intersection with 41t street in the Town of Babylon.
Plaintiff alleges that she was walking in the roadway when struck as described above as a result of the accumulation of snow on the side of the road and sidewalk. Defendants Leo and Glenda Lassiter are the owners of the property abutting the roadway and are alleged to have failed to clean the snow from the sidewalk in front of their property.
This matter has an extensive procedural history dating back to 2015. That portion of said history as it pertains to Defendant, Town of Babylon (hereinafter, "the Town") is as follows. Third-Party Plaintiffs Al's Repair Center, Inc. and 212 Bangor Street Corp. commenced a third-party action against the Town alleging negligence, contribution and common law indemnification. The Town interposed an Answer asserting several affirmative defenses on February 27, 2019. Subsequent thereto, the Town filed the instant motion to dismiss said action on the grounds that applicable statute of limitations had expired and for failure to state a cause of action or in the alternative, for conversion of the instant application to summary judgment.
Defendants Leo and Glenda Lassiter commenced the Second Third-Party action against the Town for negligence. They further alleged that if such negligence, if proven true, would enable the movants to indemnification and/or contribution from the Town . Thereafter the Town filed the instant motion to dismiss the Second Third-Party action for failure to state a cause of action or in the alternative, for conversion of the instant application to summary judgment.
In sum, the Town avers that the gravamen of the allegations against it is negligence. Specifically that the Town, its agents, servants, employees and/or contractors negligently and carelessly plowed New Highway causing excessive snow mounds to be, become and remain on the subject sidewalks. The Town relies on several statutory provisions in support of its application, including, but not limited to, General Municipal Law § 50-i(1)(c) to establish that the action is time-barred; the failure, pursuant to General Municipal Law §50-(i)1(a) to comply and plead compliance with the notice of claim requirement articulated in General Municipal Law § 50-e, Town Law §65-a(1) and Babylon Town Code § 158-1; the failure to establish a duty owed by Town to Second Third-Party Plaintiff; and Third Party Plaintiff's inability to overcome the provisions of Town Code §§191-16 and 191-1.
Third Party Plaintiffs argue inter alia that the Town's reliance upon said provisions of the General Municipal Law is misplaced as municipal notice requirements do not apply to third party claims for contribution/indemnification; that the causes of action accrue at the time of payment of the underlying claim and are subject to a six year statute of limitations has not run yet; that the crux of the action is that the Town created the dangerous condition that caused Plaintiff's accident and that the prior written notice requirements are not applicable to the Second Third Party Action. Second Third Party Plaintiffs argue inter alia that their claim of contribution is not time barred; there are questions of fact as to whether the Town's negligent snow removal cause Plaintiff's accident and the Town's motion is premature as there has not been discovery yet.
Among the grounds articulated for Town's application as discussed supra was that they did not receive prior written notice of the alleged dangerous condition, and to dismiss the complaint pursuant to CPLR 3211 for failure to state a cause of action. Because issue has been joined, and a motion to dismiss for failure to state a cause of action is one of the permissible grounds for a post-answer motion to dismiss (see CPLR 3211 [e]), this motion shall be deemed to have been brought under CPLR 3212, the Town's alternative relief sought.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case (see Alvarez v . Prospect Hosp ., 68 NY2d 320, 508 NYS2s 923 [1986]). Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see Alvarez v . Propsect Hosp ., supra; Zuckerman v. City of New York , 49 NY2d 557, 427 NYS2d 595 [1980]).
Upon review of the papers, the Court finds that the Town has clearly charted a summary judgment course, that the Town's notice of motion specifically demands said relief, and that it has submitted extensive documentary evidence including affidavit in support of its position (see generally Harris v Hallberg , 36 AD3d 857, 828 NYS2d 579 [2d Dept 2007]). Under these circumstances, the Court, in determining this motion, is free to apply the standard applicable to summary judgment motions without affording the parties notice of its intention to do so (see Mihlovan v Grozavu , 72 NY2d 506, 534 NYS2d 656 [1988]; Doukas v Doukas , 47 AD3d 753, 849 NYS2d 656 [2d Dept 2008]); Fuentes v Aluskewicz , 25 AD3d 727, 808 NYS2d 739 [2d Dept 2006]).
In support of their application, the Town submits, among other things, copies of the pleadings, the transcripts of the deposition testimony of Plaintiff, and the affidavit of Gerladine Compitello, the Town Clerk. In her affidavit, Ms. Compitello swears that she is employed as the Town Clerk for the Town of Babylon, and that her "job responsibilities include researching whether the Town of Babylon received written notice(s) of defect for sidewalks and roadways in claims or lawsuits brought against the Town of Babylon". Campitello Affidavit, paragraph 2. Ms. Campitello further attested in substance that personally searched the records contained in the Office of the Town Clerk for a period of six (6) years prior to and including the date of the alleged accident and there were no records of any prior Notices of Claim or prior written complaints involving any dangerous, defective or obstructed conditions including any such written complaints or notices involving an accumulation of ice and snow at the subject location where the accident is alleged to have occurred.
A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a dangerous condition which allegedly caused the accident unless it either has received written notice of the defect or an exception to the written notice requirement applies ( Dibble v Village of Sleepy Hollow , 156 AD3d 602, 66 NYS3d 26 [2d Dept 2017]; Poveromo v Town of Cortlandt , 127 AD3d 835, 6 NYS3d 617 [2d Dept 2015]). The only two recognized exceptions to the prior written notice requirement are where the municipality's affirmative negligence created the defect or the defect was created by the municipality's special use of the property ( Amabile v City of Buffalo , 93 NY2d 471, 693 NYS2d 77 [1999]; Gonzalez v Town of Hempstead , 124 AD3d 719, 720, 2 NYS3d 527 [2d Dept 2015]).
The Town contends that this action must be dismissed, as it did not receive prior written notice of the alleged defective condition as statutorily required. The requirement of prior written notice is a substantive element of plaintiff's cause of action ( Cipriano v New York , 96 AD2d 817, 465 NYS2d 564 [2d Dept 1983]). As a municipality's duty to repair or remove any defect complained of does not arise until actual written notice is given to it, no cause of action accrues against it ( Barry v Niagara Frontier Transit System , Inc., 35 NY2d 629, 364 NYS2d 823 [1974]). Under prior written notice statutes, thus, a municipality cannot be liable in negligence for nonfeasance unless it fails to remedy a defective condition within a reasonable time after receipt of such notice (id). It is therefore, a condition precedent to maintaining an action against a municipality ( Gorman v Town of Huntington , 12 NY3d 275, 879 NYS2d 379 [2009]), and this includes counties ( Holt v County of Tioga , 56 NY2d 414, 452 NYS2d 383 [1982]). Thus, it is incumbent on a plaintiff to both plead and prove that prior written notice had been give to the County, and failure to allege same in the complaint subjects the complaint to dismissal for failure to state a cause of action ( Katz v City of New York , 87 NY2d 241, 638 NYS2d 593 [1995]; Goldston v Babylon , 145 AD2d 534, 535 NYS2d 738 [2Dept 1988]).
Here, the Town has demonstrated their prima facie entitlement to summary judgment through their application and supporting papers (see Politis v Town of Islip , 82 AD3d 1191, 920 NYS2d 185 [2d Dept 2011]; McCarthy v City of White Plains , 54 AD3d 828, 863 NYS2d 500 [2d Dept 2008]).
Third Party Plaintiff and Second Party Plaintiff's opposition and supporting papers failed to persuasively counter the necessity of written notice. New York Courts have held that the failure to address arguments proffered by a movant or appellant is equivalent to a concession of the issue (see McNamee Constr . Corp. v City of New Rochelle , 29 AD3d 544, 817 NYS2d 295 [2d Dept 2006]; Welden v Rivera , 301 AD2d 934, 754 NYS2d 698 [3d Dept 2003]; Hajderlli v Wiljohn 59 LLC , 24 Misc 3d 1242A, 2009 NY Slip Op 51849U [Sup Ct, Bronx County 2009]). Furthermore, contrary to the arguments proferred, constructive notice of a defect is not an exception to the statutory requirement of prior written notice of the defect (see Groninger v Village of Mamaroneck , 17 NY3d 125, 927 NYS2d 304 [2011]; Amabile v City of Buffalo , supra; Rosenblum v City of New York , 89 AD3d 439, 931 NYS2d 326 [1st Dept 2011]). In addition, actual notice does not obviate the need to comply with the prior written notice requirement ( Charles v City of Long Beach , 136 AD3d 634, 24 NYS3d 404 [2d Dept 2016]; Velho v Village of Sleepy Hollow , 119 AD3d 551, 987 NYS2d 879 [2d Dept 2014]).
The Town, having established that they lacked prior written notice under the applicable statute, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule ( Yarborough v City of New York , 10 NY3d 726, 853 NYS2d 261 [2008]; Marshall v City of New York , 52 AD3d 586, 861 NYS2d 77 ). Neither Third Party Plaintiff nor Plaintiff raised a triable issue of fact as to whether there was such prior written notice or as to whether one of the two exceptions to the prior written notice requirement applied (see Amabile v City of Buffalo , supra; Politis v Town of Islip , supra; McCarthy v City of White Plains , supra).
Additionally, the failure to persuasively establish a duty owed by the Town to Plaintiff, Third Party Plaintiff or Second Third Party Plaintiff was fatal to the claims for contribution and indemnification. See, e.g., Ponce v . Miao Ling Liu , 123 AD3d 786 (2d Dept 2014); Balkheimer v. Stanton , 103 AD3d 603 (2d Dept 2013). The remaining arguments advanced by Third Party Plaintiff and Second Third Party Plaintiff were unpersuasive or otherwise devoid of merit.
Accordingly, the Town's motion for summary judgment dismissing the both complaints is GRANTED. Dated: May 15, 2020
/s/_________
HON. CHERYL A. JOSEPH, A.J.S.C.