Madden v. Town of Greene

• Decision Date: 29 June 2012
• Citation: Madden v. Town of Greene, 2012 NY Slip Op 22173, 36 Misc.3d 852, 949 N.Y.S.2d 326 (N.Y. Sup. Ct. 2012)
• Parties: Kurtis R. MADDEN, a Minor, by this Mother and Natural Guardian, Wendy L. MADDEN and Wendy L. Madden, Individually, Plaintiffs, v. The TOWN OF GREENE, Dean Calice, and Chris Freeman, Defendants.
• Court: New York Supreme Court

36 Misc.3d 852

949 N.Y.S.2d 326

2012 N.Y. Slip Op. 22173

Kurtis R. MADDEN, a Minor, by this Mother and Natural Guardian, Wendy L. MADDEN and Wendy L. Madden, Individually, Plaintiffs,

v.The TOWN OF GREENE, Dean Calice, and Chris Freeman, Defendants.

Supreme Court, Chenango County, New York.

June 29, 2012.

Thorn Gershon Tymann and Bonanni, LLP By: Arthur H. Thorn, Esq., Albany, for Plaintiffs.

Lynch Law Office By: Andrew J. Schwab, Esq., Syracuse, for Defendant Town of Greene.

Sugarman Law Office By: Paul Mullin, Esq., Syracuse, for defendants Dean Calice and Chris Freeman.

PHILLIP R. RUMSEY, J.

Several motions are currently pending.¹ The court will first consider those made by defendant Town of Greene which, if granted, would result in dismissal of plaintiffs' remaining claim for negligent design and construction of the guide rail, namely: (1) defendant's motions asserting that plaintiff's design claim is barred by the statute of limitations and (2) defendant's motion for leave to renew its 2007 summary judgment motion, which is based on the argument that—due to changes in the law—it is now entitled to absolute immunity from plaintiffs' remaining claim.²

DEFENDANT'S STATUTE OF LIMITATIONS DEFENSE

In a decision and order dated March 17, 2011, this court determined, inter alia, that plaintiffs' claim for negligent design is not barred by the statute of limitations, because it accrued upon the happening of the accident ( see Decision and Order dated March 17, 2011 [the prior order], p. 5, n. 2). Defendant moved to reargue the prior order, asserting that the court erred in rejecting its statute of limitations defense. Defendant also appealed the prior order. The appeal was decided while the motion to reargue was pending. The Appellate Division held, on May 3, 2012, in relevant part, that defendant's argument that the design claim is time barred was not properly before this court because it was first raised in defendant's reply affidavit and, therefore, that this court's comments regarding the statute of limitations—as set forth in a footnote in the prior order—do not constitute the law of the case ( see Madden v. Town of Greene, 95 A.D.3d 1426, 942 N.Y.S.2d 911 [2012],citing Willette v. Willette, 53 A.D.3d 753, 755, 861 N.Y.S.2d 204 [2008],Luft v. Luft, 52 A.D.3d 479, 480, 859 N.Y.S.2d 694 [2008],Yechieli v. Glissen Chem. Co., Inc., 40 A.D.3d 988, 989, 836 N.Y.S.2d 668 [2007] ). The parties have subsequently had opportunities to fully address the statute of limitations issue—which was not decided on the appeal from the prior order—thereby permitting this court to now properly make a determination on the merits that will constitute the law of the case ( see Matter of Kennelly v. Mobius Realty Holdings LLC, 33 A.D.3d 380, 381–382, 822 N.Y.S.2d 264 [2006];Basile v. Grand Union Co., 196 A.D.2d 836, 602 N.Y.S.2d 30 [1993];Fiore v. Oakwood Plaza Shopping Ctr., 164 A.D.2d 737, 565 N.Y.S.2d 799 [1991],affd.78 N.Y.2d 572, 578 N.Y.S.2d 115, 585 N.E.2d 364 [1991],cert. denied506 U.S. 823, 113 S.Ct. 75, 121 L.Ed.2d 40 [1992];cf. Matter of TIG Ins. Co. v. Pellegrini, 258 A.D.2d 658, 685 N.Y.S.2d 777 [1999] ). Accordingly, the court grants defendant's motion to reargue, in the interest of resolving the statute of limitations issue prior to trial. ³ After considering all of the parties' respective submissions that address whether the negligent design claim is time-barred—specifically including all that have been filed since the date of the prior order—the court adheres to its original determination ( seeCPLR 2221[f] ).

A cause of action against a municipality must be commenced “within one year and ninety days after the happening of the event on which the claim is based” (General Municipal Law § 50–i[1] ). A cause of action founded upon the alleged active negligence of a municipality in creating a defective or dangerous condition in a public road arises on the happening of the event that causes the dangerous condition ( see Kiernan v. Thompson, 73 N.Y.2d 840, 537 N.Y.S.2d 122, 534 N.E.2d 39 [1988];Sniper v. City of Syracuse, 139 A.D.2d 93, 95, 530 N.Y.S.2d 374 [1988] ). By contrast, a negligence claim based upon a municipality's breach of its continuing nondelegable duty to construct or maintain its public roadways in a reasonably safe condition—a duty that is independent of its duty not to affirmatively create a defective or dangerous condition—accrues on the happening of the accident ( see Kiernan, 73 N.Y.2d at 842, 537 N.Y.S.2d 122, 534 N.E.2d 39;Sniper v. City of Syracuse, 139 A.D.2d at 95–96, 530 N.Y.S.2d 374).

In this case, as the court previously noted, plaintiffs' remaining claim against defendant is a design defect claim:

“Based on the record before it on the [parties' respective 2007] summary judgment motions, this court held that, insofar as plaintiff alleged that defendant had been negligent by failing to install a proper or sufficient guide rail, he had stated a claim for design defects' to which written notice provisions do not apply—a determination that was affirmed by the Appellate Division, Third Department ( see Madden v. Town of Greene, 64 A.D.3d 1117, 1119, 883 N.Y.S.2d 392 [2009],citing Lugo v. County of Essex, 260 A.D.2d 711, 713, 687 N.Y.S.2d 475 [1999],Temple v. Chenango County, 228 A.D.2d 938, 938–939, 644 N.Y.S.2d 587 [1996];see also Ferguson v. Sheahan, 71 A.D.3d 1207, 896 N.Y.S.2d 245 [2010];Merchant v. Town of Halfmoon, 194 A.D.2d 1031, 599 N.Y.S.2d 687 [1993] ).”

Prior order, pp. 4–5.

Claims that a municipality negligently failed to design and install a sufficient guiderail are not founded upon allegations that a municipality affirmatively created a dangerous condition—like creating a crack in a sidewalk by removing a tree stump ( Kiernan ) or creating a depression in a street by repairing a water line ( Sniper ). Rather, as in this case, they are founded upon allegations that a municipality breached the continuing nondelegable duty to construct and maintain its roads in a reasonably safe condition by (1) failing to install a guide rail in the location where the accident occurred; (2) installing a guide rail that did not meet applicable engineering standards when it was installed; or (3) failing to upgrade a guide rail to meet later design standards when there is a history of accidents or upon significant repair or reconstruction of the road ( see Madden, 64 A.D.3d at 1119–1120, 883 N.Y.S.2d 392;see also Ferguson v. Sheahan, 71 A.D.3d 1207, 1208–1209, 896 N.Y.S.2d 245 [2010];Lugo v. County of Essex, 260 A.D.2d 711, 713, 687 N.Y.S.2d 475 [1999];Temple v. Chenango County, 228 A.D.2d 938, 938–939, 644 N.Y.S.2d 587 [1996];Merchant v. Town of Halfmoon, 194 A.D.2d 1031, 599 N.Y.S.2d 687 [1993] ). Accordingly, such claims accrue on the happening of the accident and, therefore, plaintiffs' design defect claim is timely.⁴

In light of the determination that plaintiffs' negligent design claim was timely asserted, defendant's motions seeking leave to file a late motion for summary judgment dismissing plaintiffs' design claim on the basis that it is time-barred are denied. It further bears noting that such motions must also be denied because defendant failed to show good cause for its delay in seeking such relief ( see Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004];Coty v. County of Clinton, 42 A.D.3d 612, 839 N.Y.S.2d 825 [2007]; Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3212:12). Defendant's explanation for its delay in seeking leave to file a late summary judgment motion is inherently contradictory and inconsistent with its previous submissions and the decisions previously rendered in this case. While acknowledging that the negligent design and construction issue was raised by plaintiffs in opposition to defendant's original summary judgment motion—made in July 2007—it then argues that plaintiffs' negligent design and construction claim became clear only when they served their expert witness disclosure ( see Affirmation of Andrew J. Schwab dated April 26, 2011, ¶¶ 38, 40). Defendant's explanation is belied by its own submission in 2007 of the affidavit of a licensed professional engineer addressing the issue of guide rail design and by the fact that defendant's counsel conceded the existence of plaintiff's negligent design claim in 2009 ( see prior order, pp. 4–5). Clearly, defendant has had notice—at least since this court's decision dated May 21, 2008 was affirmed by decision dated July 30, 2009—that plaintiffs had stated a negligent design claim to which written notice provisions do not apply. Defendant provides no plausible explanation for its delay of approximately two years in seeking leave to move to dismiss plaintiffs' design defect claim based upon its statute of limitations defense. Accordingly, defendant's motions for leave to file a late summary judgment motion are denied.

DEFENDANT'S MOTION TO RENEW—QUALIFIED IMMUNITY

A motion to renew may be based upon a change in the decisional law that would change the prior determination ( see Matter of Patterson v. New York State Dept. of Correctional Servs., 71 A.D.3d 1349, 898 N.Y.S.2d 675 [2010],lv. denied15 N.Y.3d 703, 2010 WL 2572028 [2010],citingCPLR 2221[e][2], Dinallo v. DAL Elec., 60 A.D.3d 620, 621, 874 N.Y.S.2d 246 [2009] ). Defendant contends that three cases decided by the Court of Appeals after filing of its original summary judgment motion in 2007—Valdez v. City of New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587, 960 N.E.2d 356 (2011); Dinardo v. City of New York, 13 N.Y.3d 872, 893 N.Y.S.2d 818, 921 N.E.2d 585 (2009); and McLean v. City of New York, 12 N.Y.3d 194, 878 N.Y.S.2d 238, 905 N.E.2d 1167 (2009)—announce a significant change in the law that now requires a determination that it has absolute immunity from plaintiffs' design defect claim. Specifically, it argues that the doctrine of qualified immunity has been completely replaced by governmental immunity,...