Evering v. The Brooklyn Union Gas Co.

• Decision Date: 15 April 2020
• Docket Number: Index 613759/17
• Citation: 2020 NY Slip Op 34885 (U)
• Parties: PATRICIA EVERING as Executor of the Estate of JEMMA CUFFY, Plaintiff, v. THE BROOKLYN UNION GAS COMPANY d/b/a NATIONAL GRID NY, NATIONAL GRID CORPORATE SERVICE COMPANY, INC. SUCCESSOR BY MERGER OF NATIONAL GRID CORPORATE SERVICES, LLC, NATIONAL GRID USA SERVICE COMPANY, INC., PASHA REALTY GROUP INC., 783 HOLDING CORP., JACKSON HEWITT TAX SERVICES, INC., SUNRISE TAX SERVICES, INC. d/b/a JACKSON HEWITT TAX SERVICES, NETWORK INFRASTRUCTURE, INC, MBY EMPIRE, INC., THE COUNTY OF NASSAU, TOWN OF HEMPSTEAD and THE INCORPORATED VILLAGE OF VALLEY STREAM, Defendants. Motion Seq. No. 03
• Court: New York Supreme Court

2020 NY Slip Op 34885(U)

PATRICIA EVERING as Executor of the Estate of JEMMA CUFFY, Plaintiff,
v.
THE BROOKLYN UNION GAS COMPANY d/b/a NATIONAL GRID NY, NATIONAL GRID CORPORATE SERVICE COMPANY, INC. SUCCESSOR BY MERGER OF NATIONAL GRID CORPORATE SERVICES, LLC, NATIONAL GRID USA SERVICE COMPANY, INC., PASHA REALTY GROUP INC., 783 HOLDING CORP., JACKSON HEWITT TAX SERVICES, INC., SUNRISE TAX SERVICES, INC. d/b/a JACKSON HEWITT TAX SERVICES, NETWORK INFRASTRUCTURE, INC, MBY EMPIRE, INC., THE COUNTY OF NASSAU, TOWN OF HEMPSTEAD and THE INCORPORATED VILLAGE OF VALLEY STREAM, Defendants.

Motion Seq. No. 03

Index No. 613759/17

Supreme Court, Nassau County

April 15, 2020

Unpublished Opinion

Motion Date: 11/21/19

SHORT FORM ORDER

DENISE L. SHER, A.J.S.C.

The following papers have been read on this motion: Papers Numbered

Notice of Motion, Affirmations and Exhibits___ 1

Affirmation in Opposition, Affidavit and Exhibits___2

Reply Affirmation___3

Upon the foregoing papers, it is ordered that the motion is decided as follows:

Defendants move, pursuant to CPLR § 3212, for an order granting summary judgment dismissing plaintiffs Amended Complaint. Plaintiff opposes the motion.

In support of the motion, counsel for plaintiff submits, in pertinent part, that, "[p]laintiff (sic) estate claims that defendants are liable for damages caused to decedent Jemma Cuffy when she tripped over an unsafe condition on a sidewalk in Valley Stream.... All defendants seek summary judgment dismissing the amended complaint, though on different grounds. The Village alone moves on the ground that it did not receive prior written notice of the

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specific condition identified in the notice of claim, as the Village Code required. The other defendants are National Grid, which obtained a permit from the Village to open the sidewalks, and Network, which opened the sidewalk for National Grid and placed a temporary asphalt patch there without fully restoring the sidewalk to its original condition. Both National Grid and Network move on the ground that the admissible evidence proves that, no matter how dangerous the sidewalk condition and no matter how careless the defendants, Ms. Cuffy did not fall because of the sidewalk condition, as plaintiff alleges. To the contrary, the evidence submitted with this motion proves that Ms. Cuffy admitted that her fall occurred, not on the sidewalk, but in the street some distance from the condition identified on the sidewalk. These admissions (sic) - that the sidewalk condition created by Network did not cause Ms. Cuffy to fall - stand undisputed by any admissible evidence, [citation omitted]. Before she died, Ms. Curry (sic) did testify at a 50-h examination that an asphalt patch on the sidewalk caused her fall. But Ms. Cuffy's testimony is inadmissible hearsay when offered against National Grid and Network, who had no notice of and did not attend the 50-h exam, [citation omitted]. The Village - which knew at the 50-h exam that it was immune from liability for lack of prior written notice - certainly did not have 'the same motive to expose falsehood and inaccuracy' as National Grid (and Network) have in this lawsuit. [citation omitted]. Moreover, discovery has revealed that there is no other admissible evidence that could conceivably prove at trial that Ms. Cuffy tripped over the asphalt patch on the sidewalk, [citation omitted]. No party can identify a witness who can give testimony that would prove that Ms. Cuffy tripped over that patch. In sum, based on the admissible testimony, none of the defendants are liable, and there is no material issue of fact that requires a trial of the allegation that National Grid or Network's negligence caused Ms. Cuffy's injuries." See Defendants' Affirmation in Support Exhibits B, C and G.

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Counsel for defendants further asserts, in pertinent part, that, "National Grid and Network's motion is addressed only to the element of causation: the admissible evidence proves that Ms. Cuffy fell - not on the sidewalk as claimed - but in the street, getting into or out of a car, and there is no contrary admissible evidence sufficient to create an issue of fact for trial. To focus on this element of causation. National Grid and Network assume the following only for the purposes of this motion: (1) National Grid obtained a permit to open the sidewalk in October 2014 from the Village to open the sidewalk (sic) on the north side of West Merrick Road 75 feet east of Carroll Avenue to provide gas service to the building at 783 West Merrick Road; (2) National Grid contracted with Network to perform the work described in the permit, and Network did open the sidewalk so that the gas service could be provided to 783 West Merrick Road; (3) Network completed its work, backfilled its excavation and applied the temporary asphalt patch in or about December of 2014; (4) the temporary asphalt patch remained in place through November 16, 2016, and the sidewalk was not fully restored to the condition it was in before Network's work until after November 22, 2016; (5) Network and National Grid failed to use reasonable care to make the sidewalk reasonably safe on November 22, 2016; and (6) Ms. Cuffy suffered injury in a fall on November 22, 2016. On or for years before November 22, 2016, the Village code included sections 19-1 and 19-2.... In substance, those two sections bar any negligence action against the Village for personal injury for an unsafe condition, including a sidewalk condition, unless the Village Clerk has actually received prior written notice of that condition.... That written notice must be actually received by the Village Clerk in the manner prescribed in section 19-2 and that notice 'must identify, with particularity, the specific nature and location' of the condition.... On November 22, 2106 (sic) at approximately noon, Anthony LoCicero, a trained and experienced emergency medical technician ('EMT'), in

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response to a call, found Ms., Cuffy sitting in the street on West Merrick Road in Valley Stream.... Mr. LoCicero was the only EMT who cared for Ms. Cuffy; a police car met him (in his ambulance), of the police officers drove the ambulance to Franklin General Hospital, with Mr. LoCicero accompanying Ms. Cuffy inside the ambulance.... While Mr. LoCicero was with Ms. Cuffy, she told him that she 'was getting into her car and her leg gave out.'... On December 6, 2016, Dr. Patrick Corcoran, a physician, board-certified in physical medicine and rehabilitation, spoke with and examined Ms. Cuffy at the Orzac Center for Rehabilitation in Valley Stream.... Dr. Corcoran asked Ms. Cuffy how she fell, a fact that was important to his evaluation of her.... Ms. Cuffy responded that she fell while getting out of a car, stating she 'tripped over my own feet.'... Ms. Cuffy served a notice of claim dated February 14, 2017.... The Village's William Grace conducted a notice-of-claim search and found that the Village had not received prior written notice of the condition identified in Ms. Cuffy's notice of claim.... Mr. Grace wrote a report about his notice-of-claim search and his visit to the location identified in the notice of claim." See Defendants' Affirmation in Support Exhibits A-C and H-K.

Counsel for defendants argues, in pertinent part, that, "Chapter 19 of the Village Code bars plaintiff's action, because the Village had not received prior written notice of the condition identified in the amended complaint and bill of particulars.... The evidence shows that the Village did not itself create the sidewalk condition, but, instead, issued a permit to National Grid, which authorized National Grid to open the sidewalk to provide gas service to a building located at 783 West Merrick Road in Valley Stream.... On the proof submitted, the Village is entitled to summary judgment dismissing the complaint insofar as it is addressed to the Village." See Defendants' Affirmation in Support Exhibits C, D and G.

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In further support of the motion, defendants submit the Affirmation of William Grace, the director of Public Health and Safety of defendant Incorporated Village of Valley Stream ("Valley Stream"), and the Affirmation of Nicholas F. Miraglia, Esq., prior counsel for defendant Valley Stream. See Defendants' Grace's Affirmation in Support; Defendants' Miraglia Affirmation in Support.

In opposition to the motion, counsel for plaintiff submits, in pertinent part, that, "[p]laintiff's abundant proof in admissible form, coupled with the controlling law will demonstrate that contrary to defendants' assertions. Plaintiff has a sustainable claim against the defendants. In addition, there are triable issues of material fact as to whether defendants' admitted failure to use reasonable care to make the sidewalk reasonably safe, which caused and created a dangerous condition was the proximate cause of deceased plaintiff, Jemma Cuffy's trip and fall.... In short, the Estate of Jemma Cuffy vigorously disputes defendants' contention that, 'no matter how dangerous the sidewalk condition' was when they left it for almost 2 years prior to Ms. Cuffy's accident, or 'no matter how careless the defendants' were, 'Ms. Cuffy fell - not on the sidewalk as claimed but in the street, getting into or out of a car, and there is no contrary or admissible evidence sufficient to create an issue or fact for trial'.... [I]n addition to Jemma Cuffy's sworn 50-H testimony. Plaintiff has produced both direct and circumstantial evidence from Mr. Anthony Porter who was the only witness present at the time of CUFFY's accident. Mr. Porter's sworn deposition testimony and his sworn affidavit both refute defendants' claims that Ms. Cuffy was found sitting in the street and fell getting into or out of a car. Based upon the supported evidence, triable material issues of facts exist as...