Celli v. Orange & Rockland Utils.
| Citation | 2020 NY Slip Op 34645 (U) |
| Decision Date | 30 October 2020 |
| Docket Number | Index 034854/2017 |
| Parties | FRANK J. CELLI, JR., Plaintiff, v. ORANGE AND ROCKLAND UTILITIES, INC. Defendants. |
| Court | United States State Supreme Court (New York) |
Sherri L. Eisenpress, A.J.S.C.
The following papers, numbered 1 to 6, were considered in connection with Defendant Orange and Rockland Utilities Inc.'s ("O & R") Notice of Motion, pursuant to Civil Practice Law and Rules § 3212 granting summary judgment and dismissal of the Complaint against it:
PAPERS NUMBERED.
PERETTI/EXHIBITS A-J AFFIRMATION IN OPPOSITION/AFFIDAVIT OF WAYNE T. BALLARD/ EXHIBITS A-BB 4-5
Upon the foregoing papers, the Court now rules as follows:
The above captioned action seeks to recover for serious personal injuries sustained by the Plaintiff, Frank J. Celli Jr., on July 10, 2015, when the motorcycle he was riding struck broken-up uneven asphalt on west-bound Route 59, in Clarkstown, New York. An action was commenced on October 5 2017, and issue was joined as to Defendant O & R by service of an Answer on November 27, 2017. After the completion of discovery, and the filing of a Note of Issue on January 16, 2020, Defendant timely filed its summary judgment motion. The Court notes that a companion action arising from the same incident was filed against the State of New York in the Court of Claims.
Plaintiff Celli testified that his accident occurred on July 10, 2015 a clear evening, as he rode his motorcycle in the far-right westbound lane of Rt. 59, in the Town of Clarkstown. As he traveled approximately 30-35 miles per hour, on a curve in the roadway, the front tire of his motorcycle made contact with potholes and uneven pavement in the roadway, causing him to fly over the handlebars and to come to rest approximately 25 feet away on the roadway. Mr. Celli did not observe the potholes prior to contact. Thereafter, a woman named Desiree Salerno, who was driving immediately behind him, got out of her car and came to his aid, EMS arrived, and Mr. Celli was transported to Nyack Hospital. At his Court of Claims deposition, Plaintiff identified photographs taken of the roadway approximately one month after the accident as fairly and accurately depicting the condition of the roadway at the time of the incident.
Eyewitness, Desiree Salerno, testified as a non-party witness at an examination before trial in the Court of Claims action. She testified that she witnessed Plaintiff's accident as she travelled behind Plaintiff's motorcycle in the right westbound lane. The accident occurred on a bend in the road where a large pothole was located. Ms. Salerno marked a photograph depicting the location of the pothole, which she described as being two feet wide by two feet long. She testified that when Plaintiff's motorcycle came into contact with the pothole, she observed the steering wheel of the motorcycle go to the right and the back of the bike swerved out to the left, at which time Mr. Celli was thrown off.
Defendant O & R produced Daniel Peretti, manager of the law department of Con-Ed[1], whose duties include the investigation of accidents and claims involving Defendant O & R. Mr. Celli testified that O & R performed gas work on Route 59, near its intersection with Broome Boulevard, where gas valves and gas main were located. In August 2012, O & R performed work related to the elimination of gas leaks on the steel gas main which included the cut out of approximately forty (40) feet of gas main and the replacement with plastic so as to eliminate corrosion leaks on the steel main. In order to perform such work, a forty (40) foot long trench was dug in the right westbound lane of Rt. 59, and after the work was completed, the area was restored back to asphalt.
In July 2013, a larger job was undertaken in the area which involved the retirement of approximately one thousand feet of gas main. This work began on the western most end of the 2012 work and proceeded in a westerly direction. To perform this work, O & R dug two (2) four by eight feet (4 x 8) trenches. The plastic main is embedded in sand, rock aggregate is compacted to within eight or nine inches of the final grade, and then final asphalt is put down, without milling. Work records show a project completion date of August 12, 2015, a date post-accident.
At his deposition, Mr. Peretti testified that O & R never makes repairs on state roads, even if it is their facilities which are the cause of a dangerous condition on the roadway. He further contended that O & R never received any notice from the New York Department of Transportation ("DOT") regarding the area of Plaintiff's accident or the condition of the pavement surface prior to the accident. He did, however, confirm that O & R performed paving work in the subject area after the accident in August 2015, but did not know why they performed this work.[2]
Plaintiff also submits the deposition testimony of James Murawski, employed by the DOT as an Assistant Resident Engineer, taken in connection with the Court of Claims action. Mr. Murawski's duties include overseeing the operations of the DOT, maintenance of roads, work zones, safety and complaints regarding State highways in Rockland County. He testified that in June 2015, in response to complaints of a rough riding surface, Mr. Murawski went to the site and observed that the pavement had multiple asphalt patches from the work of both O & R and DOT, so he reached out to O & R to schedule joint repair work in the area.
DOT crews did temporary patching work to make the road surface better. The notification to O & R regarding the condition of the roadway in the area of Plaintiff's accident took place prior to Plaintiff's accident.
Mr. Murawski further testified that this work was necessitated by the sinking of an O & R gas valve which caused the pavement level to compact. Mr. Murawski determined that O & R was required to do certain work to repair the area of the trench/utility cut. This would involve O & R milling out the asphalt around its valve; excavation of the area; application of new subbase which would then be recompacted to be stronger and not settle; placement of proper asphalt lifts; and putting down a subbase, a medium course and then a riding course. Mr. Murawski testified that O & R would fix their area and DOT would fix anything that was not part of O & R's area. Final repairs, including some made by O & R, were made in July or early August 2015.
Defendant O & R moves for summary judgment and argues that there is no evidence that O & R owed any duty of care to Plaintiff. It asserts that the limited excavations undertaken in 2012 and 2013 were performed pursuant to a permit issued by DOT and that O & R fully complied with the requirements of the permit and an assistant resident DOT engineer approved the work. Relying upon the case of Espinal v. Melville Snow Contractors, Inc., 98 N.Y.2d 136, 746 N.Y.S.2d 120 (2002), Defendant asserts that no duty was owed to plaintiff who was not a party to the contract and none of the exceptions are applicable. It further contends that it had no obligation to conduct inspections after the work and that there is no evidence that it failed to exercise reasonable care in the performance of its duties.
Other arguments asserted by Defendant are that the State of New York has a non-delegable duty to maintain the state highways the superseding intervening acts of the NYS DOT completely relieve O & R of any potential liability because they inspected the sites after the work was performed; there was no notice of a dangerous or defective condition; and Plaintiff's failure to identify the cause of his accident is fatal to his claim because he did not see the road conditions beforehand.
In opposition to O & R's motion, Plaintiff contends that Defendant has failed to satisfy its prima facie showing that there are no triable issues of fact as to its negligence. He notes that a contractor may be liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk. Here, Defendant made no showing that it did not create a dangerous condition.
Additionally, Plaintiff argues that a triable issue of fact exists as to Defendant's negligence, which requires the denial of summary judgment. In support of this contention, Plaintiff submits the expert affidavit of Wayne Ballard, P.E. In his affidavit, Mr. Ballard opines that O & R's failure to perform a proper restoration of the roadway created and resulted in the dangerous and defective condition which caused Plaintiff's accident. More specifically, Mr. Ballard avers that the jagged edges around O & R's restoration work reflects an improper restoration resulting in voids within the joint that allowed the joint to open up, permitting water to infiltrate the road and subjecting the road to the freeze/thaw cycles resulting in a heaved and depressed road surface. Additionally, he contends that the photographs show evidence of a failure to extend the removal of the top layer beyond the excavation area by milling the road and using tack coat prior to repaving the work area to bond the binder of the existing road to the new top layer. Plaintiff also argues that James Murawski's testimony raises triable issues of fact, including that he provided to O & R actual notice of the dangerous and defective conditions at issue prior to Plaintiff's accident.
As to the O & R's claim that it is not liable to Plaintiff under the standard set forth in Espinal. Plaintiff argues that affirmative acts...
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