GILLING v. CITY OF NEW ROCHELLE (2019)

Plaintiff commenced this small claims action seeking to recover $450.00 for damage sustained to his vehicle while driving on a public roadway in New Rochelle, New York.

Defendant now moves for summary judgment dismissing the action.

Plaintiff opposes the motion.

In support of the motion, Brian Powers, Deputy Corporation Counsel for the City of New Rochelle, affirms that pursuant to the Notice of Claim filed by the plaintiff on November 20, 2018, plaintiff seeks to recover for damage to his vehicle's tire caused by a pothole next to 360 Huguenot Street in New Rochelle, New York on October 27, 2018. A copy of the Notice of Claim is attached to the papers as Exhibit A. Counsel argues that the municipality did not have prior written notice of a claimed defect on that roadway prior to defendant filing his Notice of Claim. As such counsel maintains that pursuant to the City of New Rochelle Charter, the municipality cannot be held liable. New Rochelle City Charter Article XII § 127A provides:

No civil action shall be maintained against the city for damages or injuries to person or property sustained in consequence of any street, highway, trees, bridge, culvert, sanitary sewer or storm drains, sidewalk or crosswalk or any other public place being defective, out of repair, unsafe, dangerous or obstructed, or in consequence of the existence of snow or ice thereon, unless written notice thereof, specifying the particular place, had actually been given to the Commissioner of Public Works prior to the happening of the event causing such damage or injury to person or property, and there was a failure or neglect by the city to repair or remove the defect, danger or obstruction or to cause the snow or ice to be removed or the specified place to be made reasonably safe within a reasonable time after the receipt of notice relating to it.

Counsel affirms that the Department of Public Works (“DPW”) conducted a search of records for the street complained of and found no complaints on file for the last six years. James Moran, Deputy Commissioner of the Department of Public Works and City Engineer for the City of New Rochelle affirms that he searched the DPW records complaint book as well as the file for that street and block. According to his search there are no records of the City ever receiving written notice of a roadway defect/pothole at 360 Huguenot Street prior to October 27, 2018. Mr. Moran states that this search included six years of records. He also states that there are no records of permits, logs, work orders or reports in connection with the subject location. Accordingly, he affirms that the City cannot be held liable.

In opposition to the motion, plaintiff states that his car has never driven the same following the accident. Attached to his papers are his Notice to Claim and photos of the area, photos of his damaged tire, as well as a receipt in the amount of $450.00. The Notice of Claim provides that on October 27, 2018, at 11pm, defendant was driving from New Rock Movie Theater. While driving in front of 360 Huguenot Street his tires fell into a large hole. One of the tires busted and the rim bent. Defendant stated that he returned to the area the next day to take pictures but discovered that the hole had already been filled up. He maintains that the incident could have been avoided had the workmen closed off the area.

It is well settled that in order to obtain summary judgment, the movant must establish its cause of action sufficiently to warrant a court directing judgment in its favor as a matter of law. The party opposing the motion must produce evidentiary proof in admissible form sufficient to require a trial on material questions of fact on which the opposing claim rests (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 (1988); Zuckerman v City of New York, 49 NY2d 557 (1980)).

Based upon the foregoing, the Court finds that defendant established its burden. The law provides that “a municipality that has adopted a ‘prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” (Dutka v Odierno, 145 AD3d 661 [2d Dept. 2016] (citations omitted). “The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality” (Id.) (citations omitted). Here, defendant demonstrated its prima facie entitlement to judgment as a matter of law by submission of the Deputy Commissioner of Public Works' affidavit stating that a search of City records for the past six years was conducted and no prior written complaint about a defect was found (Rochford v City of Yonkers, 12 AD3d 433 [2d Dept. 2004]. The plaintiff's submissions in opposition to the motion are insufficient to raise a triable issue of fact (Id.; see also De La Reguera v City of Mt. Vernon, 74 AD3d 1127 [2d Dept. 2010].

Motion for summary judgement granted. Complaint dismissed

This constitutes the Decision and Order of this Court.

The Court considered the following papers on this motion: Notice of Motion dated May 29, 2019; Affirmation in Support; Exh. A-D. Plaintiff Opposition papers, dated August 30, 2019; Exhibits.

Adam Seiden, J.