Jackson v Town of Hempstead (2010 NY Slip Op 50515(U))

Jackson v Town of Hempstead

2010 NY Slip Op 50515(U) [27 Misc 3d 1201(A)]

Decided on March 29, 2010

Supreme Court, Nassau County

De Stefano, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

In this action to recover damages for personal injuries allegedly sustained by the plaintiff as a result of a trip and fall, the defendant, Town of Hempstead ("Town"), moves for summary judgment, and the defendant, Long Island Water Corporation ("Corporation"), cross-moves for summary judgment, dismissing the plaintiff's amended complaint.

For the reasons that follow, the motion is denied and the cross motion is granted.

The following is a summary of the deposition testimony, exhibits and contentions of the parties:

The plaintiff testified that on September 22, 2005, at around 8:00 a.m., she heard the sounds of a sanitation truck and breaking glass in front of her home at 1392 Langdon Blvd.^[FN1], in [*2]Rockville Centre. Shortly, thereafter, she went into the roadway and observed a broken mirror and trail of glass emanating from her driveway. She then went into her garage to get a broom and shovel in order to remove the glass. Wearing "flip-flops", the plaintiff swept the glass into a pile while walking backwards or sideways away from her driveway. About five minutes later, and having taken five to six steps, she stepped into a pothole with her left foot. She did not notice the hole prior to stepping into it, although she had been aware of its presence for a long time. In this regard, she indicated that over the course of 25 years, she had made telephone complaints to the Town about the pothole. In fact, the pothole was repaired at different times over the years. The hole was 10 to 12 inches in diameter and approximately five inches deep.

The plaintiff fell to her left knee in great pain. Her hands were scraped and her foot was "broken". She crawled to her house and was aided by her father-in-law. When a Town truck went by, her father-in-law flagged it down and spoke to the Town employees [in it]. The plaintiff also spoke to the Town employees, one of whom was named "Tony MacClean" (sic, McCabe). According to the plaintiff, when she asked "why they didn't fix it [the hole, which they were aware of]," they replied, "[i]t's not cost effective". Apparently, the Town employees then made some repairs to the hole.

A short time later, the plaintiff's father-in-law brought her to Mercy Medical Center, where X-Rays were taken. The plaintiff was advised that her fifth metatarsal was broken and she was released with a prescription for Motrin. She wore a hard cast for two months and another cast for two additional months thereafter.

The Town contends that it is entitled to summary judgment because there was no prior written notice of the pothole. In this regard, the Town cites, inter alia, to the testimony of Sheila Dauscher, Records Access Officer for the Town of Hempstead Highway Department, who stated that it was her job to search and maintain records in relation to Notices of Claims and FOIL requests. She also gave the following testimony, which is relevant to the motion:

A. I sent an inspector out. And then I searched the records for three yearsprior to the date of accident.

Additionally, Ms. Daushcer testified that after Mr. Peter Rizzo (an inspector for the Town of Hempstead Highway Department) inspected the area, she asked Suzanne Reed [of her office] to contact the Corporation. She did not know when the excavation of the area had last been done by the Corporation, except that she believed it was very old and thought that she did not find any permits for work done there. In an affidavit attached to the motion, Ms. Daushcer repeats that she conducted a search of Town Highway Department records and that there was no record of repairs or construction work by the Town of any contractor at the subject location for the period of 2002 through September 2005. Nor were any roadway work permits issued with respect to that area prior to September 2005. In addition, the Town Highway Department did not have written notice of any complaints in that area for the period of 2002 through September 2005. The records included "notices regarding roadway accidents or conditions received from the Office of the Town Clerk".

The town cites to Chapter 6, section 6-1 of the Code of the Town of Hempstead which requires receipt of prior written notice of a defective roadway condition before institution of a civil action against the Town for injuries resulting therefrom. That section, in pertinent part, reads:

No civil action shall be maintained against the Town of Hempstead or the Commissioner of Highways * * * for damages or injuries * * * sustained by reason of any highway * * * being defective * * * unless written notice of * * * such defective, unsafe, dangerous or obstructed [*4]condition of such highway * * * was actually served upon the Town Clerk or Commissioner of Highways in accordance with § 6-4 hereof * * * 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 thereof. Under no circumstances shall the Town of Hempstead be liable * * * in the absence of such written notice.

Section 6-4 requires that service of notice "be accomplished by personal service or service by registered or certified mail actually received by the town officer or officers specified herein." Additionally, "[t]he written notice must identify, with particularity, the specific nature and location of each condition, defect or obstruction complained of."

Also annexed to the motion is a portion of the deposition transcript of Town Highway Department employee Peter Rizzo, whose area included the location where the subject accident occurred. According to Mr. Rizzo, when a complaint was made regarding a roadway condition, it was his job (and that of others working with him) to perform an inspection. He also stated that it was not "directly" his responsibility to respond to residents' complaints of potholes, "[m]ost of that information go[ing] to the area foreman unless there's a problem", in which case, he would be contacted. He did not recall responding to any complaints regarding potholes at the subject accident location prior to September 22, 2005. He did do an inspection of the area after the plaintiff's accident, however.

Mr. Rizzo further indicated that the two cut-outs signifying the area "patched up" after the accident were made by the Corporation. This was evident because of the blue markings on the curb near the cut-outs. According to Rizzo, although, generally, it was the responsibility of the utilities to maintain the areas where they worked, the Town would sometimes make repairs, do patches or set up barricades when it became aware of a defect pending the completion of repairs/patches by utilities. If a patch was done by the Town, the Town would then contact the utility responsible which would then make the proper repairs. With respect to the subject occurrence, the Town employees patched the area on the date of the occurrence and then contacted the Corporation. He did not know if the Corporation made further repairs.

In addition, portions of the deposition of Tony McCabe, Highway General Maintenance Crew Chief for the Town of Hempstead were annexed to the Town's motion. According to the Town, "Mr. McCabe * * * indicated that he did not recall any repairs being made to the subject roadway accident location when referencing a log book page dated June 1, 2005" (Affirmation of Charles O. Heine in Support of Motion at p.6). However, a review of the complete transcript, which was annexed to the Plaintiff's Affidavit in Opposition reveals that the testimony given by Mr. McCabe at his deposition was actually contradictory and inconclusive. For example, Mr. McCabe gave the following testimony while referencing Exhibit "1" (Transcript of McCabe at pp.11-14 attached to Affidavit of Plaintiff in Opposition):

QWould you be able to tell from this document or from your own recall if an inspection was done of the portion of Langdon Boulevard in front of the house located at 1388 Langdon Boulevard on the date this document was prepared? [*5]

Mr. HEINE:I don't know if an inspection was done, it says activity, but I will allow the witness to answer.

Q.Can you tell either from looking at this document or your own recall if on the date of this document an inspection was done of the area of Langdon Boulevard in front of 1388 Langdon Boulevard?

MR. HEINE:He's asking, based upon this logbook page, what is written on this page, could you tell if there was any activity, any sort of work, by you or any member of your crew at the address he just gave or was this just a general notation without reference?

MR. HEINE:Any work done to the address he just gave, 1388 Langdon Boulevard, which is the location of the accident?

MR. HEINE:He's asking, was any work done on 6/1/05 to Langdon Boulevard in general or could you tell by this, was there any work done at that particular location, 1388.

MR. HEINE:On this date, it says Langdon Boulevard. It doesn't give a specific location on the logbook page.

Q.Is that from this document or from your own recall that you can tell me work was done in front of 1388 Langdon?

MR HEINE:Can you tell from this page or your own separate recollection, was there any work done at this specific location that the attorney just stated which was 1388 Langdon Boulevard, can you tell from this document?

Q.Could you tell me what sort of work was done in front of the premises located at 1388 Langdon Boulevard on that day?

MR HEINE:He is asking you for a specific location. Are you clear? He is asking for 1388, not 3922 Langdon Boulevard.

Q.Do you recall from your own recollection what was done on that day to the roadway in front of 1388 Langdon Boulevard?

MR HEINE:Again, he is asking for a specific location. Can you tell from your own recollection from this document?

Q.Can you tell from your own recollection if on the date of this document any work was done if front of 1388 Langdon Boulevard, Rockville Centre?

Q.Other than your prior testimony that you had a specific recollection as to work being done at that location on June 1st of 2005, do you have an independent recollection of work being done at that location on any other date?

MR HEINE:The date of the accident is September 22, 2005. That day and prior, before that date, do you recall doing any work at 1388 Langdon Boulevard in the [*7]roadway?

Q.Back to Defendant's Exhibit A. Drawing your attention to the small circle that appears in this photograph.

Does the condition that is circled, there indicate to you that a pothole had been filled in prior to the time this photograph was taken?

MR HEINE:The picture speaks for itself, but if the witness has any independent recollection, he can answer. There's been no indication today as to when this picture was taken.

Q.In your words, how would you describe the condition that is circled in ink there?

MR HEINE:The picture speaks for itself, but I will allow the witness to answer over objection. If you can, describe it.

A.If I describe it, it looks like a cutout that has been filled back in and deteriorating.

Q.Do you notice anything at all about the circled area in this photograph [in Defendant's Exhibit B] that comes to your attention based upon your eighteen years of experience with the highway department?

Q.Now, generally if there's a cutout that is deteriorating, is that, to your knowledge, the responsibility of the Town to repair or the entity that had created the cutout?

MR HEINE:Is it the outside agency that did the cutout, based upon your understanding, the highway department, the contractor, the Town, responsible to repair the cutout?

At page 49 of the transcript, in response to a question from the Town's attorney, McCabe stated:

Q.Just so the record is clear, referring to Plaintiff's Exhibit 1, which is dated daily logbook 6/1/05, based upon what is on the logbook page, do you recall doing any repairs to the accident location that is circled on Defendant's Exhibit F on that date?

The court notes that the additional exhibits referenced at the deposition have not been annexed to the Town's motion, or identified, except in a very limited way, rendering it difficult to completely assess the witnesses' testimony.

In its cross motion, the Corporation asserts that no evidence was presented to establish that it created the alleged dangerous condition which caused plaintiff's accident or that it had actual or constructive notice of the condition. The Corporation proffers the testimony of Mr. Ben J.M. Claase, Manager of field operations for the Corporation. He stated that the Corporation delivers potable water for consumption by residents of the area of Rockville Centre, which included 1388 and 1392 Langdon Blvd. He noted that the Corporation would do excavation work in roadways in general to allow access to the water main or replace, repair or maintain the infrastructure. According to Claase, a search of records was conducted to determine where the Corporation had performed work in the area. The results showed that the Corporation had done work at 1326 Langdon Blvd., which was four blocks north of the area where the plaintiff fell. Looking at various photos, Claase identified blue stripes on the curb area in front of 1388 Langdon Blvd., which signified the existence of water utilities. He went on to state that "[w]e mark out our utilities based on New York State law that requires any contractor that does excavation within the state to file for a utility "mark out". Then utilities like the water, electric and gas are required to check their records, visit the locations and mark out utilities". He did not know who did the excavation or paving work shown in photos of the area where plaintiff fell. He identified a small repair patch in a photo located over the water lines in front of 1388 Langdon Blvd. However, the larger patch appeared to be "running over" the Nassau County sewer line. He added that it was possible the Corporation did excavation on the larger patch prior to September 2005 (Exhibit 2 to Cross motion: Transcript of J.M. Claase at pp.47-48): [*9]

Q. So, since there may have been a water service line running perpendicular across Langdon Boulevard from the front of this blue marking, is it possible that Long Island Water did do excavation on the large patch * * * ?

He further indicated that when excavation work was done in-house, certain types of records called job records were prepared. Likewise, when work was contracted out, work order records were prepared. In an affidavit submitted in support of the cross motion, Mr. Claase asserted that he "caused a search to be made for all records maintained by * * * [the Corporation] for a period of six (6) years before September 22, 2005 for work performed at 1388 and 1392 Langdon Blvd. * * * no records were found for those locations for that time period".

In opposition to the motion and cross motion, the plaintiff argues that summary judgment should be denied because: she repeatedly notified the Town of the pothole; the Town Sanitation Department "affirmatively littered the roadway with broken glass"constituting a concurrent cause of her accident; the failure to produce a work permit does not mean that repairs to the area weren't made; the patches or cut-outs were not sealed properly and were created by the Corporation.

The plaintiff refers to an inspection sheet filled out by Mr. Rizzo and Suzanne Reed, which is annexed to the opposition papers as Exhibit "G" and dated 1/5/06, 1/6/06 and 1/13/06, reciting the following:

The next page of the exhibit appears to be an internal record kept by the Town, also made [*10]subsequent to the accident. In that record, it indicates that after Suzanne contacted the Corporation, "they advised that the cut outs were old, but that they would effect repairs". The record goes on to recite that:

There was no notations that the TOH was at the accident location on the date of accident.

The law in regard to the liability of municipalities for accidents occurring on their roadways is well settled (Lugo v County of Essex, 260 AD2d 711 [3d Dept 1999]):

[A] municipality cannot be held liable for a dangerous condition or defect on one of its roadways unless it had prior written notice of such condition or defect as required by the municipality's notice statute (see, Di Paolo v Village of Tuckahoe, 253 AD2d 841; Boucher v Town of Candor, 234 AD2d 669, 670; Shepardson v Town of Schodack, 195 AD2d 630, 631, affd 83 NY2d 894; Linder v Town of Babylon, 187 AD2d 568), except where the municipality affirmatively created the dangerous condition or defect (see, Bornt v Town of Pittstown, 248 AD2d 854, 855, lv denied 92 NY2d 803). Here, the record discloses that there was no prior written notice of the allegedly dangerous condition provided to the Town as required by its local law. Further, we find unpersuasive plaintiffs' assertion that the Town should be held liable based on its negligent sanding because the failure to properly sand or remove snow and ice from a roadway does not constitute the type of affirmative negligence required to excuse noncompliance with the Town's notice requirement (see, Lang v County of Sullivan, 184 AD2d 981, 982; Buccellato v County of Nassau, 158 AD2d 440, 442, lv denied 76 NY2d 703). Accordingly, Supreme Court properly granted summary judgment dismissing the claim against the Town for negligent maintenance of the roadway (see, Roser v City of Kingston, 251 AD2d 936; Good v County of Sullivan, 198 AD2d 706, 707).

* * *

To succeed in its motion for summary judgment, a defendant has the burden of demonstrating the absence of all triable issues of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324).Where the allegations stem from physical conditions in streets or sidewalks, a municipality must only submit proof that it did not receive prior written notice pursuant to its statute, which shifts the burden to a plaintiff to establish the availability of an exception (see, Brzytwa-Wojdat v Town of Rockland, 256 AD2d 873; Akley v Clemons, supra). [*11]

At bar, no issue has been raised by the Town as to the existence of its duty to maintain and repair the subject roadway or that a dangerous condition, to wit, a pothole, existed. Instead, the Town's motion is based on the absence of prior written notice, which is in contravention of section 6-1 of the Town of Hempstead Code. However, the Town failed to meet its burden of establishing a lack of prior written notice. In this regard, it was conceded by the Town that the Highway Department maintained records for six years, nevertheless the Town employee responsible for keeping those records (Ms. Dauscher) searched only three years prior to the date of the accident for records of complaints or claims. No explanation was made as to why such a limited records search was conducted. Furthermore, section 6-1 of the Town of Hempstead Code indicates that the written notice requirement could be satisfied by service of notice on either the Commissioner of Highways (i.e., the Town Highway Department) or the Town Clerk. Ms. Dauscher's deposition testimony reflects that she conducted a search of the records for which she was responsible—namely, those of the Highway Department; she did not search the records kept by the Town Clerk's office. Furthermore, the supplemental affidavit submitted by her, which states that the Highway Department did not have any records of written notice of any complaints regarding the subject area (for the three years searched) and that the records included "notices regarding roadway accidents or conditions received from the Office of the Town Clerk", is wholly insufficient to establish that a search of the Town Clerk's records was conducted or that all such records were forwarded to the Highway Department.

Finally, the court notes that Mr. McCabe's deposition testimony, although somewhat confused and contradictory (matters which would properly be considered by a jury), indicates that the Town Highway Department filled a pothole at the subject location on June 1, 2005, approximately three months prior to the plaintiff's accident. When considered with the testimony of the plaintiff concerning the nature, duration and reoccurrences of potholes over the years, there would, in any event, be an issue of fact regarding the creation of the pothole which would invoke an exception to the written notice requirement (see, e.g., Farrell v City of New York, 49 AD3d 306 [2d Dept 2008]; Lugo v County of Essex, supra).^[FN2]

Regarding the issue of the Corporation's liability for the happening of the accident, it is worth noting that the plaintiff would have to establish that the Corporation caused or created the dangerous condition giving rise to her injuries. The Corporation's contentions, legal authority and propositions pertaining to actual or constructive notice (as contained in the cross motion) are, therefore, not relevant to the plaintiff's claim of liability against it. In this regard, there is no supportable allegation that the Corporation had a legal duty respecting maintenance of the subject roadway; rather, the plaintiff's theory of liability against the Corporation is predicated on the allegation that it negligently performed work in that location which caused the creation of a [*12]pothole.

The Corporation's arguments in the cross motion can thus be reduced to the following: there is no evidence that it performed any excavation work at the subject roadway; even assuming that it did perform work at the location, there is no evidence that it performed negligently so as to create a pothole.

Regarding the first assertion, the court notes that the testimony elicited from the Corporation's own witness was somewhat equivocal. In this regard, Mr. Claase testified that it was possible the Corporation did excavation work in the area depicted in the photograph shown to him. Moreover, the presence of blue markings at the site indicated that water utilities were located there. Town employee Peter Rizzo, likewise, testified that the cut-outs, which were patched up after the accident, had been made by the Corporation. When considered with Claase's other testimony that a search of records for six years preceding the accident indicated that no work was done at the location during that time period, the Corporation's evidence establishes prima facie that it performed no excavation work at the subject location for at least six years prior to the accident but could have performed excavation work before that time.^[FN3]

As to the second assertion, the Corporation relies on the plaintiff's failure to adduce evidence of any negligence on its part—the only statements in the record in this regard being those of Mr. McCabe, who testified that a cut-out wasn't properly filled, and the statement contained in the records of Town of Hempstead Highway Department indicating that the final restoration of the cut-outs appeared to be incomplete. But the Corporation correctly notes that McCabe's testimony does not constitute expert opinion. In addition, the Town Highway Department records constitute hearsay and are otherwise conclusory. Neither do they articulate a causal connection between the allegedly incomplete "filling-in" of cut-outs and the creation of a pothole.

Under the circumstances, and considering the uncontroverted evidence that the Corporation performed no work in the subject roadway for at least six years, and, further, that there is no admissible evidence that it performed negligently or that the negligence caused the creation of a pothole, the court concludes that the Corporation met its prima facie burden on the cross motion. It was incumbent on the plaintiff to establish that an issue of fact existed warranting the denial of summary judgment, which she failed to do (see generally Hyland v City of New York, 32 AD3d 822 [2d Dept 2006]).

Accordingly, it is hereby ordered that the cross motion is granted and the complaint is dismissed insofar as asserted against the Corporation. It is further ordered that the motion is denied.

This constitutes the decision and order of the court. [*13]

Dated: March 29, 2010