Opinion
01-15-2015
Betty Ann CIESZYNSKI, Respondent, v. TOWN OF CLIFTON PARK, Appellant, et al., Defendant.
Shantz & Belkin, Latham (Frederick F. Shantz of counsel), for appellant. LaMarche Safranko Law PLLC, Clifton Park (Marc R. Pallozzi of counsel), for respondent.
Shantz & Belkin, Latham (Frederick F. Shantz of counsel), for appellant.
LaMarche Safranko Law PLLC, Clifton Park (Marc R. Pallozzi of counsel), for respondent.
Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and EGAN JR., JJ.
Opinion
EGAN JR., J.Appeal from an order of the Supreme Court (Crowell, J.), entered June 7, 2013 in Saratoga County, which denied a motion by defendant Town of Clifton Park for summary judgment dismissing the complaint against it.
At approximately 5:45 p.m. on November 26, 2011, plaintiff and her son were walking in an easterly direction along the southern edge of Old Route 146 in the Town of Clifton Park, Saratoga County. Prior to reaching the intersection of Old Route 146 and Plank Road, plaintiff and her son cut across a grassy area to access a shopping plaza parking lot owned by defendant Northway 9 Plaza Associates. While traversing this grassy area, plaintiff allegedly tripped over a piece of metal rebar that was protruding from the ground, causing her to fall and sustain various injuries.
Shortly after her accident, plaintiff served a notice of claim upon defendant Town of Clifton Park and, following a General Municipal Law § 50–h hearing, commenced this negligence action against defendants. Following joinder of issue, the Town moved for summary judgment dismissing the complaint against it, contending that plaintiff had failed to provide prior written notice of the alleged defect as required by Code of the Town of Clifton Park § 176–1(A). Supreme Court denied the Town's motion, and this appeal ensued.
Northway 9 Plaza Associates took no position as to the underlying motion and is not participating in the instant appeal.
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We affirm. Where, as here, a municipality has enacted a prior written notice provision (see Code of the Town of Clifton Park § 176–1[A] ), “a plaintiff may not bring a civil action against [the] municipality for damages as the result of an injury sustained by reason of a defective street, highway, bridge, culvert, sidewalk or crosswalk unless prior written notice of the allegedly defective condition has been given” (Smith v. Village of Hancock, 25 A.D.3d 975, 975, 809 N.Y.S.2d 589 [2006] ; accord Seelinger v. Town of Middletown, 79 A.D.3d 1227, 1228, 913 N.Y.S.2d 376 [2010] ; Westbrook v. Village of Endicott, 67 A.D.3d 1319, 1319, 889 N.Y.S.2d 317 [2009] ). Hence, in order to prevail upon its motion for summary judgment dismissing the complaint, the Town was required to establish as a matter of law that the grassy area in question constituted—insofar as is relevant here—either a highway, a sidewalk or a site that serves the same “functional purpose” as a highway or sidewalk (Smith v. Village of Hancock, 25 A.D.3d at 976, 809 N.Y.S.2d 589 [internal quotation marks and citation omitted]; accord Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 [2011] ; Seelinger v. Town of Middletown, 79 A.D.3d at 1229, 913 N.Y.S.2d 376 ) and that the prior written notice required by the Town's ordinance was not provided. To our analysis, the Town failed to demonstrate that the grassy area fell within the scope of the ordinance in the first instance; accordingly, no prior written notice was required, and the Town's motion was properly denied.
To be sure, a highway “encompasses the associated shoulders, guardrails, embankments, retaining walls and culverts” (Matson v. Town of Milton, 252 A.D.2d 919, 921, 676 N.Y.S.2d 303 [1998] ; see Highway Law § 2 [4 ]; Gutierrez v. Town of Ramapo, 210 A.D.2d 636, 636–637, 619 N.Y.S.2d 840 [1994] ). As relevant here, whether the land adjacent to a highway is paved or otherwise improved does not determine its status as a shoulder; rather, the inquiry is whether the area in question creates “a general right of passage for the traveling public” (Gutierrez v. Town of Ramapo, 210 A.D.2d at 637, 619 N.Y.S.2d 840 ). Here, the Town failed to establish that the grassy area where plaintiff fell was designed or intended to provide a general right of passage; further, it is readily apparent from the photographs contained in the record on appeal that the grassy area where plaintiff's accident occurred is too far removed from the edge of Old Route 146 to be considered an adjacent shoulder or to otherwise fall within the definition of a highway (see Staudinger v. Village of Granville, 304 A.D.2d 929, 929–930, 758 N.Y.S.2d 415 [2003] ).
We reach a similar conclusion with respect to whether the grassy area may be deemed to fall within the definition of a sidewalk. In this regard, “a grass strip between the sidewalk and the pavement of the road [indeed] is part of the sidewalk” (Castiglione v. Village of Ellenville, 291 A.D.2d 769, 770, 738 N.Y.S.2d 443 [2002], lv. denied 98 N.Y.2d 604, 746 N.Y.S.2d 278, 773 N.E.2d 1016 [2002] ; see Vehicle and Traffic Law § 144 ; Pulver v. City of Fulton Dept. of Pub. Works, 113 A.D.3d 1066, 1066, 979 N.Y.S.2d 431 [2014] ; Malone v. Town of Southold, 303 A.D.2d 651, 652, 757 N.Y.S.2d 85 [2003] ; cf. Oliveri v. Village of Greenport, 93 A.D.3d 773, 773–774, 940 N.Y.S.2d 675 [2012] ). Here, however, the grassy area depicted in the relevant photographs does not lie between a sidewalk and a roadway and, contrary to the Town's contention, the mere fact that plaintiff and her son were traversing the grassy area to access the nearby parking lot (owned by Northway 9 Associates) does not render this area the functional equivalent of a sidewalk (see Iannuzzi v. Town of Wallkill, 54 A.D.3d 812, 813, 864 N.Y.S.2d 470 [2008] [dirt path in a public park is not a sidewalk]; Quackenbush v. City of Buffalo, 43 A.D.3d 1386, 1388, 842 N.Y.S.2d 657 [2007] [unimproved trail or path is not the functional equivalent of a sidewalk]; compare Mullen v. Town of Hempstead, 66 A.D.3d 745, 746, 886 N.Y.S.2d 355 [2009], lv. denied 13 N.Y.3d 717, 2010 WL 156721 [2010] [paved bike path providing a general right of passage for the public is the functional equivalent of a sidewalk or highway] ).
In short, the record makes clear that the grassy area at issue here cannot be considered to be a highway, a sidewalk or the functional equivalent thereof. As such area does not fall within the scope of the Town's ordinance, no prior written notice was required and, therefore, the Town's motion for summary judgment dismissing the complaint against it was properly denied (see Giarraffa v. Town of Babylon, 84 A.D.3d 1162, 1162–1163, 923 N.Y.S.2d 697 [2011] ; Smith v. Village of Hancock, 25 A.D.3d at 976–977, 809 N.Y.S.2d 589 ).
ORDERED that the order is affirmed, with costs.
PETERS, P.J., LAHTINEN, GARRY and ROSE, JJ., concur.