Opinion
Index No. 906999-19 RJI No. 01-19-133644
03-09-2020
KASANDRA LAW, Plaintiff,. v. REHABILITATION SUPPORT SERVICES, INC. and CITY OF ALBANY, Defendants.
William G. Kelly,. Jr., Esq. Corporation Counsel, City of Albany Attorney for Defendant. City of Albany By: Sarah A. Valis, Esq. Cooper Erving &Savage, LLP Attorney for Plaintiff Kasandra Law By; Carolyn B,. George, Esq.
Unpublished Opinion
William G. Kelly,. Jr., Esq. Corporation Counsel, City of Albany Attorney for Defendant. City of Albany By: Sarah A. Valis, Esq.
Cooper Erving &Savage, LLP Attorney for Plaintiff Kasandra Law By; Carolyn B,. George, Esq.
DECISION AND ORDER
David A. Weinstein Acting Supreme Court Justice
By Verified Complaint ("Complaint") filed October 11, 2019, plaintiff Kasandra Law alleges that she was injured when, at 4:15 a.m. on February 14,2019. she slipped and fell while walking, on the sidewalk leading to a multiple dwelling residence located at 117 South Lake Avenue in Albany, New York. (Complaint ¶ 13). She avers that the fall was "due to the dangerous,...hazardous and .icy condition of the, said sidewalk" (id).
The Complaint itself does not indicate the time of the fall, but it is set forth in the. Verified Notice of Claim that was earlier served on the City of Albany, and is appended to the Complaint.
The Complaint names as defendants Rehabilitation Support Services Inc; arid the City of Albany (the "City" or "Albany'"'). It makes the same identical allegations against both defendants: Each was "solely responsible for keeping the exterior sidewalks leading to ... 117 South Lake Avenue... in a. reasonably safe condition,.plaintiff s injuries were caused solely by each defendant's negligence; each defendant had "actual and/or constructive notice of the icy and slippery conditions causing such occurrence"; and each "had the opportunity to take measures to correct arid remedy the. dangerous and hazardous condition" (Complaint ¶¶ 9-17).
The City now moves to dismiss pursuant to CPLR 3211 (a)(1), (2) and (7). The motion is premised on two grounds. First, Albany argues that plaintiff has. failed to allege that the City received actual notice of the hazardous, condition as required by Albany City Code § 24-1, which provides in pertinent, part as follows:
"No civil action shall be. maintained against, the City for damages or injuries to person or property... Sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk or street unless written notice thereof, relating to. the particular place; was actually given to the Commissioner of Public Works and there was a - failure or neglect to cause such snow or ice to be removed or the place otherwise made reasonably safe within a reasonable time after the receipt of such notice."
Second, Albany contends that it cannot be held liable for any failure to address the. alleged icy condition because there was. a storm in. progress, at the time of the fall.
In Support Of these arguments, the City presents the affidavit of Daniel Dililio, Deputy Commissioner of the City's Department of General Services, and the Department's custodian of records (see Affidavit of Daniel Dililio ¶ 1). Dililio. avers that he performed a search of the Department 's records for any written notice of defective conditions on the sidewalk in the vicinity of 117 South Lake for a ten-year period prior to February 14, 2019, arid found no such notice (id. ¶¶ 4-5). Further,, he states that "a review of these records confirms that from approximately 11:00 AM on February . 12,2019 to 12:00 PM on February 14, 2019 the City of Albany, including the area in the vicinity of 117 South Lake Avenue, experienced a winter storm that led to snow fall and freezing rain" (id. ¶ 6).
Defendant also presents a: copy of plaintiffs 50-h hearing transcript (Attorney Affidavit in Support, Ex D). At the hearing, Law testified that she. was delivering newspapers for the Albany Times Union when she slipped and fell on an icy patch at the location named in the comp faint 1 She was not asked at the hearing whether it was snowing at the time, although she did say that the. ground was "clear," with some snow banks on each side of the sidewalk (id at. 22-23, 27).
Plaintiff opposes the motion by the affirmation of counsel and a memorandum of law. In regard to the absence of written notice, plaintiff notes that a municipality may be held liable, for a sidewalk hazard even in the absence of the notice required by local ordinance if it "created the defect of hazard through an affirmative act of negligence, or where a 'special use' confers a special benefit upon the municipality" (Plaintiff's Memorandum of Law at 2-3 [citations omitted]). Plaintiff argues that the motion is premature since there has been no discovery, and the present record does not disclose "[h]ow this, sidewalk became icy'," and. whether the icy condition "was created by improper or ineffective snow or ice treatment'' by the City (id. at 3).
As to defendant's claim that a storm was in progress at the time of the fall, plaintiff's counsel notes that the City has failed to produce a certified weather report, and relies only on "the hearsay affidavit of a city employee referring to records that were not provided'' (id. at 5).
Discussion
On a motion to. dismiss pursuant to CPLR 321.1(a)(7), the question before the Court is "whether the proponent of the pleading, has a cause of action, not. whether he has stated one" (Allen v City of New York, 49 A.D.3d 1126, 1127 [3d Dept 2008], Iv denied 11 N.Y.3d 705 [2008] [citation omitted]). The Court may consider affidavits and other material "to establish conclusively that the plaintiff has no cause of action" (id [citations omitted]).
As rioted supra, the City also premises its motion on CPLR 3211 (a)(1) (dismissal on documentary evidence) and CPLR321.1)(a)(2)(dismissal for lack of jurisdiction). Since basis for the motion is the Delilio affidavit, which does not constitute documentary-evidence" for purposes of CPLR3211, the motion cannot succeed on that ground (see Creping Fogarty, 59 A.D.3d, 837 [3d Dept 2009 ["affidavits submitted by a defendant do not constitute documentary evidence upon which a proponent of dismissal can rely"]). As to lack of jurisdiction, nothing in. Albany's papers demonstrates that any of the defects alleged in plaintiffs pleadings deprive the Court of jurisdiction to rule on the matter. Therefore, the motion turns on whether plaintiff has failed to state a claim.
The central basis for defendant's motion is that plaintiff has: failed to plead that tile City had received written notice of the ice. condition on which she fell, which is made a. condition precedent, to. suit by Albany Code §.24-1. Failure to "plead and prove such prior written notice requires dismissal of the complaint," unless an appropriate exception applies (see Kales v City of New York, 169 A.D.3d 585,585 [1st Dept 2019] [citations and internal quotation marks omitted] [dismissing complaint on CPLR 3211(a)(7) motion for failure to plead written notice requirement had been met]; see also Reinert v Town of Johnsburg, 99 A.D.2d 572, 572-573 [3d Dept 1984] [affirming summary judgment for defendant, as plaintiff "failed to plead compliance, with the respective town and county notice of defect statutes" and "[s]uch notice, constitutes a necessary condition precedent to entitlement to. sue these government .entities"]).
Plaintiff did not plead in her Complaint that there had been compliance with Albany's prior notice provision. .Rather, she alleged only that the City "had actual and/or constructive notice of the icy and slippery conditions causing such occurrence, as such condition existed for a sufficient length of time prior 'to the happening of this occurrence'' (Complaint ¶ 17), This allegation - that the condition had been in place for a sufficient period that defendant may be charged with notice thereof - is a bread and butter constructive notice claim, which may not be used to get around a written notice requirement set forth in a local code (see Amabile v City of Buffalo, 93 N.Y.2d 471 [1999]; see also Wall v Town of Niskayuna, 14 A.D.3d 988,989-990 [3d Dept.2005]; Iv denied 5 N.Y.3d 701 [2005] [elimination of constructive notice exception from local law on ice and snow conditions meant "plaintiffs failure to provide written notice of the icy condition which allegedly caused her fall requires dismissal Of her claim"]). In atty case, defendant established via the Dililio Affidavit that no such notice had been received, and thus that there had not been, compliance, with the statutory prerequisite (see Hockett v City of Ithaca, 149 A.D.3d 1378,1379 [3d Dept 2017], Iv denied 29 N.Y.3d 916 [2017] [affidavit from City Clerk based on review of municipal records that no notice about dangerous condition had been received was sufficient to set forth defendant's prima facie Case that, notice requirement had not. been met]).
There are two. exceptions to a statutory written notice requirement: where the municipality created a "special use" of the sidewalk, and where it "created the [hazardous] condition by an affirmative act of negligence" (see Poirier v City of Schenectady, 85 N Y2d 310, 314-315 [1995]). While plaintiff contends that it should be allowed discovery as to whether these exceptions apply here, its arguments, in this regard are unavailing.
The special use exception "is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated, to the. public use,, arid is . therefore required to maintain a portion of that property" (id, at 315),. In short, this is a "harrow exception to the general rule" imposing liability only .for defects which defendant created or had notice of; which applies when the defendant, "puts, part of a public way to a special use for [its] own benefit and the part used is subject to [its] control," such, that it must; "maintain the. part so used in a reasonably safe condition ...." (Minott v City of New York, 230 A.D.2d 719,720 [2d Dept 1996] [citations omitted]). Generally, it "involves] the installation of ail object in the street or on the sidewalk, such as an oil cap or a runway for the benefit of a private landowner" (id.).
This doctrine bears no apparent relevance to anything alleged in the complaint .or at issue in this: case. Plaintiff does riot, intimate what "special use" may be involved here, much less - as must be shown to meet this exception — how the "alleged special use of the sidewalk, caused the claimed defective condition and how this was a proximate cause of the accident" (Loiacani v Pillage of Tarrytown, 36 A.D.3d 864, 866 [2d Dept 2007]). As described further below, the failure to plead this theory or any facts which might give rise to it in the Complaint or Notice of Claim precludes plaintiff from raising it in response, to the. present motion, particularly when there is no intimation in plaintiff s papers as to what "special use" might have occurred, here.
The application of the second exception - creation of the defect - to a case involving the accumulation of ice arises out of the Court of Appeals decision in San Marco v Village/Town of Mount Kisco (16NY3d 111 [2010]). In that case, the Court upheld, the trial court's ruling that, there were issues of fact as to whether a Village's "snow removal procedure triggered an exception to the [Village's] written notice statute," premised on its creation of the alleged, hazardous condition (id. at 115). Specifically, the. Court found that the Village's plowing of snow into high piles immediately adjacent to parking spaces and its subsequent failure to address the. ice condition that resulted when the piles melted and tefroze raised an issue for trial as to whether that snow removal "created the ice condition" in the lot on which plaintiff fell (id. at 115-118), Similarly, a cause of action charging that "[a] municipality's act in piling up snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous ice condition," is not subject to the prior notice requirement (see Eisenberg v Town of Clarkstown, 172 A.D.3d 683,684 [2d Dept 2019]).
'Plaintiff argues .that given the early stage of the .litigation, defendant. Albany cannot, demonstrate, as a matter of law it had no role in producing the ice hazard on which plaintiff slipped in the absence of any discovery. As a result, plaintiff argues that any dismissal, motion on grounds of Albany 's notice ordinance would be premature.
The problem for plaintiff, however, is that she never alleged in any fashion that defendant had. created the icy condition in either the,Notice of Claim or Complaint, While the Notice of Claim, states that the City “did .,. create a dangerous and hazardous condition tn that snow and ice; was allowed to accumulate on said sidewalk'...” (Notice of Claim ¶ 6), that is not sufficient to allege that the City's own affirmative actions brought about the defect - as necessary for the exception to apply. Rather, on its face the assertion in the Notice, of Claim is that defendant created the defect by faili ng to take any action, a claim that cannot proceed absent a showing, of prior written notice. (see Masoito v Village of Lindenhurst, 100 A.D.3d 718,719 [2d Dept 2012] ["a municipality's failure to remove all snow and ice from a parking lot is passive in nature and does not constitute an affirmative act of negligence, excepting it from prior written notice requirements"]; Cantea v Barrett, 144 A.D.2d 515,517-517 [2d Dept 1988], Iv dismissed 74 N.Y.2d 650 [1989] [plaintiff's allegation of defendant's "failure to remove ice and snow from a public roadway" was "insufficient to establish the type of. affirmative negligence necessary to exempt the case from the prior written notice requirement/1 and thus "plaintiff should not be permitted to proceed on her claim of affirmative negligence"]).
Since plaintiff did not plead that the City' s affirmative acts of negligence created the defect in either the Complaint or Notice of Claim, she is precluded from doing so in response to the present dismissal motion (see Kales, 169 A.D.3d at 585 [exception tor creation of defect does not apply since "plaintiff never asserted such a theory in her notice of claim or complaint"]; Osman v Town of Smithtown, 175 A.D.3d 1313,1315 [2d Dept 2019] [''Since the plaintiffs failed to allege in their pleadings that the. affirmative negligence exception applies, the Town was not required to show, prima facie, that the exception did not apply"]; Semptini v Village of Southampton, 48 A.D.3d 543, 544 [2d Dept 2008] [failure to allege "the affirmative negligence theory of liability" in notice of claim bars its assertion in response to a summary judgment motion, "as a party may not add a new theory of liability which was not included in the notice of claim"]; cf Seegers v Village of Mineola, 161 A.D.3d 910,911 [2d Dept 2018] [summary judgment denied when plaintiff alleged in complaint and bill of particulars that "Village created the ice condition" on which plaintiff fell by creating snow piles that blocked, drains]).
Kales also noted that the statute of limitations had expired by the time, of the dismissal motion, and other decisions similarly refer to the passage of time, since the notice of claim and complaint were served in justifying why the absence of any allegation that defendant affirmatively created the defect warrants dismissa1 (see 169 A.D.3d at 5 85 [“plaintiff never asserted such a theory in her notice of claim or complaint arid she is precluded from doing so in opposition to defendant's motion after the statute of limitations has expired Semprini, 48 A.D.3d at 544.[plaintiff cannot assert affirmative, creation of defect theory after failing to plead it, and then waiting 20 months to do so in her' bill of particulars]). I do not read this language as allowing a plaintiff to proceed on an unpled theory so long as the dismissal motion is made at an earlier stage of the litigation (see Keeler v City of Syracuse, 143 A.D.2d 518, 518 [noting in finding written notice requirement barred action that "plaintiffs' complaint fails to. allege that, the city affirmatively created the dangerous condition of the sidewalk"; no. reference to any delay in raising issue}). Plaintiff made no application to amend the. Notice of Claim or Complaint in response to the motion, nor is it apparent what facts she might have pled that would give rise to an exemption from the actual notice requirement here.
In other words, plaintiff cannot how, in response to a motion to dismiss, introduce an entirely new theory of liability, of which notice has never been provided to. defendant, and which has not been pled (see Scovazzo v Town of Tonawanda, 83 A.D.3d 1600 [4th Dept 2011] [rejecting plaintiff's effort to get around written notice requirement by arguing Town created defeat, as "plaintiff did not raise that theory of liability in her notice of claim, amended notice of claim of complaint"]). Since Law's pleadings do not allege either that the written notice, requirement set forth in Albany City Code § 24-1 was met. or that. a. valid exception applies, defendant City of Albany's motion must be granted. I need not, therefore, consider the City's alternative basis for .dismissal under the 1-storm in progress" doctrine.
Accordingly,
It is hereby ORDERED that the City of Albany's motion is granted, and the complaint dismissed as to that defendant; A preliminary conference between plaintiff and the remaining defendant will be scheduled following filing of this Decision &Order, via separate letter.
This constitutes the Decision &Order of the Court. This Decision & Order is being electronically filed with the County Clerk, The signing of this Decision and Order and electronic filing with the County Clerk shall not constitute notice of entry under CPLR Rule 55and Counsel is not relieved from the applicable provisions of that Rule respecting to filing and service of Notice of Entry.