Ruffino v. City of Buffalo New York

Full title: STEPHANIE RUFFINO Plaintiff v. CITY OF BUFFALO NEW YORK CITY OF BUFFALO…

Court: Supreme Court, Erie County

Date published: Sep 7, 2021

2021 N.Y. Slip Op. 33588 (N.Y. Sup. Ct. 2021)

Opinion

No. 818097/2017

09-07-2021

STEPHANIE RUFFINO Plaintiff v. CITY OF BUFFALO NEW YORK CITY OF BUFFALO DEPARTMENT OF PUBLIC WORKS, PARKS, AND STREETS, CITY OF BUFFALO DIVISION OF PARKING ENFORCEMENT MVP NETWORK CONSULTING, LLC. Defendants

HON. DIANE Y. DEVLIN Justice Presiding

Unpublished Opinion

DECISION AND ORDER

HON. DIANE Y. DEVLIN Justice Presiding

Upon the foregoing papers, it is ORDERED that the City of Buffalo Defendants'

Motion for Summary Judgment is DENIED and Defendant MVP Network's Motion for Summary Judgment is GRANTED.

The following papers were read on the Motions for Summary Judgment

Notice of Motion-Affirmation-Exhibits; Document Numbers 36-48

Notice of Motion-Affirmation-Exhibits; Document Numbers 49-57

Answering Affirmations-Exhibits; Document Numbers 58-63

Replying Affirmations, Document Numbers 64-65

The Plaintiff filed a Complaint sounding in negligence as a result of a trip and fall that occurred on December 28, 2016 when she allegedly tripped on the stub of a cut-off parking meter that protruded on a city sidewalk in front of Defendant MVP Network's building at or near 1297 Hertel Avenue. The Plaintiff sustained a fracture and underwent a surgical procedure.

According to the record, at some point a parking meter became "bent" and eventually was removed. A stub remained for several months after which a new meter was installed. Discovery has been conducted and MVP Network and the City of Buffalo Defendants file Motions for Summary Judgment.

Defendant MVP Network argues that it did not have a duty to repair or report the alleged defective condition. MVP Network claims that City of Buffalo Defendants are responsible for the management of street parking and that their employees have a duty to report any defective condition. MVP Network is not responsible for repairs to a parking meter. MVP Network argues that city employees testified that the City of Buffalo Defendants removed the meter and that the city is the only entity charged with maintaining the meters. MVP Network also argues that liability, if any, should rest with the City of Buffalo Defendants because they created the condition and therefore had actual knowledge of it. MVP Network also seeks dismissal of any cross claims for indemnification.

The City of Buffalo Defendants collectively move for summary judgment on the theory that they did not receive prior written notice pursuant to the City of Buffalo charter.

Plaintiff submits opposition and explains that the owner of defendant MVP Network testified that he tripped over the stub but did not notify the City of Buffalo Defendants because he used the parking spot for which he did not have to pay during the time that the parking meter was removed. Plaintiff explains that city meter maintenance personnel are responsible for installing, repairing, and maintaining parking meters. They also collect coins from the meters. Parking enforcement personnel write tickets for parking violations. The supervisor of the meter personnel testified that City of Buffalo Defendants had removed the parking meter once it was determined that it could not be straightened. The city employee who removed the meter testified that he removed it pursuant to the city's instructions and did not find any issue with the remaining stump.

Plaintiff argues that the City of Buffalo charter requires that every owner or occupant of any premises abutting any public street has a duty to maintain and repair the sidewalk. In reply, MVP Network argues that the city charter requires owners to maintain sidewalks and not a parking meter and the cases cited by Plaintiff are for cracks or height differentials in concrete slabs. In reply the City of Buffalo Defendants argue that it did not create the bent parking meter which resulted in the removal of the meter.

ANALYSIS

The record reveals that City of Buffalo Defendants' employees cut the parking meter with tools and left a stub. No one has argued that the defect is trivial or that it is flush with the surrounding walkway. Although the Court finds that Defendant City clerk did not have notice, the Plaintiff raised an issue of fact as to whether the City affirmatively created the alleged defect by removing a parking meter from the sidewalk. Anderson v. CD Fleetwood Associates. 82 A.D.3d 689 (2d Dept. 2011).

In her Complaint and Verified Bill of Particulars, the Plaintiff alleges that she "was caused to trip and fall on a pipe and/or cut-off parking meter." It is undisputed that City of Buffalo Defendants own and maintain the parking meters.

Defendant MVP Network argues that since the city charter provides that the Commissioner of Parking oversees parking meter and pay station repairs, it has no duty to repair or report the alleged defect.

Defendant MVP Network cites Smithy. 125 Street Gateway Ventures. 75 A.D.3d 425 (1^stDept. 2010) that involved a metal protrusion and where the Court found that a city sign or signpost is not part of the sidewalk. Plaintiff argues that Smith refers to the Administrative Code of the City of New York. Plaintiff relies on the Fourth Department case of Beagle v City of Buffalo. 178 A.D.3d 1363 (4^th Dept. 2019) where the Court found that an abutting landowner can be liable for a sidewalk condition stemming from a city-owned tree root. MVP Network responds by arguing that issue in Beagle involved a sidewalk height differential and the issue here involves a pipe or meter pole and not the sidewalk.

The Plaintiff alleges that she tripped over a pipe or stub from the meter post. The meter and post were owned by the City of Buffalo Defendants. If the City of Buffalo owned the parking meter, it follows that it owned the stub that remained. The stub did not become part and parcel of the sidewalk. The Court finds that the argument that Defendant MVP had a special use of free parking during the time that the meter was absent is without merit.

In Bronfman v East Midtown Plaza. 151 A.D.3d. 6391 Dept. 2017) the Court affirmed denial of a motion for summary judgment when the Plaintiff tripped on the mound on the sidewalk that surrounded the signpost stump. In the case at bar, the Plaintiff tripped on the pole protrusion and not the surrounding sidewalk.

The Court DENIES the City of Buffalo Defendants' Motion for Summary Judgment. The Court GRANTS Defendant MVP Network's Motion for Summary Judgment and DISMISSES the Complaint and cross claims against it.