Upon the foregoing papers it is ORDERED that this motion and cross-motions by defendants are granted. The cross-motion by plaintiff Michael Capasso is denied as moot.

On November, 23, 2006, Thanksgiving Day, plaintiffs were visiting the home of plaintiff Tanya Capasso's aunt, third-party defendant Francine Ciardullo, who lived at 172 Murray Avenue in the Village of Goshen. Upon arriving by automobile, plaintiff Michael Capasso parked the vehicle on the street with the passenger side of the vehicle facing the house. Plaintiff Tanya Capasso (hereinafter "plaintiff") got out of the vehicle and as she stepped from the pavement of the street to her aunt's lawn, she fell and broke both of her ankles.

The block of Murray Avenue where plaintiff's aunt lived had been recently repaved. Murray Avenue is a village street, maintained by defendant Village of Goshen (hereinafter "Goshen"). When the street was repaved, berms were created on the sides of the street to facilitate drainage of surface water. The creation of the berms caused a height differential between the lawn of third-party defendant's home and the street of approximately eight to ten inches. Plaintiff did not notice or see this difference in height before she stepped off the street onto the lawn; at her deposition she testified that she was looking straight ahead. She attributes the accident to the difference in height between the pavement and the lawn. Her theory in this action is that 1) the condition was hazardous and 2) the creation of the condition was negligent conduct by all or some of the defendants and 3) defendants' negligence was a proximate cause of her accident and injuries.

All defendants now move for summary judgment dismissing the complaint.

Murray Avenue was repaved in connection with development of a new residential subdivision, Harness Estates, owned by defendant Harness Estates, LLC (hereinafter "Harness Estates"). Murray Avenue provides access to the subdivision. Harness Estates was installing a new water line under Murray Avenue for its subdivision. The original plan was to simply patch the street where it had been excavated for installation of the new line. Residents of the block, however, protested that because of other work previously done under the street, the street was becoming a hodgepodge of uneven patches and requested that the entire block be repaved. The Mayor of Goshen made a "handshake" deal with Harness Estates whereby the latter would provide the repaving of the block and the former would see to it that the issuance of additional [*2]certificates of occupancy for Harness Estates would be facilitated.

According to the witness deposed on behalf of Harness Estates, the block of Murray Avenue which was to be repaved did not have curbs or gutters to control run off of surface water. Goshen wanted the street to be repaved so that surface water would run down to the corner of Murray Avenue and Scotchtown Avenue where there were catch basins. One proposal was to build an asphalt curb, six to eight inches high. Goshen's Department of Public Works objected that snow plows would have difficulty plowing the street without hitting the curbs. It was then decided to create the "asphalt wings" or berms on the sides of the street.

Examination of photographs of the site demonstrate that the height differential was not inherently dangerous and was readily observable by the reasonable use of one's senses (see; Rivas-Charino v Wildlife Conservation Soc., 64 AD3d 556 [2009]; DiGiorgio v Morotta, 47 AD3d 752 [2008]; Errett v Great Neck Park Dist., 40 AD3d 1029 [2007]; Orlando v Audax Constr. Corp., 14 AD3d 500 [2005]; Jung Hee Lee v Sung Whun Oh, 3 AD3d 473 [2004]; Cupo v Karfunkel,1 AD3d 48 [2003]). It is noteworthy in this regard that plaintiff admitted she was not looking at the ground as she stepped onto the lawn. Defendants have therefore established their prima facie entitlement to summary judgment.

Plaintiffs submit the affidavit of an engineer, Joseph Champagne, P.E. who states that the condition was hazardous because there were no sidewalk on that block of Murray Avenue and it is reasonably foreseeable that pedestrians would walk on the side of the street. Mr. Champagne opines that a reasonably prudent pedestrian would not have recognized the height differential "especially where the roadway surface and adjoining property had been at the same elevation for many years, and the pedestrian had many years of familiarity with the area as it existed prior to the repaving job" (Affidavit of Joseph Champagne, P.E., dated January 7, 2010, paragraph 11). Champagne also refers to New York State Department of Transportation Guidelines which allegedly state that the drop off at pavement edge should not exceed two inches.

As Goshen points out, there is no indication that New York State Department of Transportation Guidelines are applicable to a village street. As defendant Lane & Tully Engineering and Surveying, P.C. points out, the cited guideline, section 1.130, does not contain such a statement at all.

In short, the court does not find that plaintiffs' engineering expert raises a triable issue of fact to defeat the motion. Although he states that the condition was a "trap" in conclusory fashion, he does not state why a person with the reasonable use of his or her senses should not have seen the differential in height. The argument distills to one that a person would not notice it because it wasn't there before. The converse, therefore, should follow from this logic: if the condition had been there previously a person would have noticed it. The conclusion, logically, is that the condition, in and of itself, was not hazardous. The failure of plaintiff to notice a change in topography is an insufficient basis to impose liability upon defendants.

Accordingly, defendants' motion and cross-motions are granted.The foregoing constitutes the decision and order of the court.

Dated: February 18, 2010

E N T E R [*3]

Goshen, New YorkHON. ELAINE SLOBOD, J.S.C.