Mazzella v. City of N.Y.
| Decision Date | 13 April 2010 |
| Citation | 72 A.D.3d 755,899 N.Y.S.2d 291 |
| Parties | Wayne MAZZELLA, Jr., appellant, v. CITY OF NEW YORK, respondent. (Action No. 1) Wayne Mazzella, Sr., etc., appellant, v. City of New York, respondent, et al., defendant. (Action No. 2). |
| Court | New York Supreme Court — Appellate Division |
Robert B. Marcus, P.C., New City, N.Y., and Kerner & Kerner, New York, N.Y. (Kenneth T. Kerner of counsel), for appellants (one brief filed).
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Elizabeth I. Freedman of counsel), for respondent.
PETER B. SKELOS, J.P., FRED T. SANTUCCI, PLUMMER E. LOTT, and SANDRA L. SGROI, JJ.
In two related actions to recover damages for personal injuries (Action No. 1) and wrongful death, etc. (Action No. 2), which were joined for trial, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Aliotta, J.), dated October 30, 2008, as granted that branch of the motion of the defendant City of New York which was for summary judgment dismissing the complaint in Action No. 1 and dismissing the complaint in Action No. 2 insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On January 14, 2004, between 10:30 P.M. and 11:00 P.M., the plaintiff in Action No. 1, Wayne Mazzella, Jr., was driving his car north on Korean Veterans Parkway in Staten Island with his 15-year-old brother Joseph Mazzella, who was in the passenger seat. Freddy Alvaro was driving his car south on Korean Veterans Parkway at the same time. Both Alvaro and Wayne Mazzella, Jr., testified at their depositions that it was snowing heavily, and that conditions were poor. Suddenly, the vehicle driven by Wayne Mazzella, Jr., veered across the median, and the front of Alvaro's car collided with the passenger side of Mazzella's vehicle. Joseph Mazzella was killed in the collision. Wayne Mazzella, Jr., was injured, and he testified that he had no memory of the accident.
Wayne Mazzella, Jr., commenced an action against the defendant City of New York, and Wayne Mazzella, Sr., as administrator of the estate of Joseph Mazzellaand on his own behalf, commenced a separate action against both the City and Wayne Mazzella, Jr. The actions were joined for trial. The City moved, inter alia, for summary judgment dismissing the complaint in Action No. 1 and dismissing the complaint in Action No. 2 insofar as asserted against it, arguing that it was entitled to summary judgment because the accident occurred while the storm was still in progress. The Supreme Court, among other things, granted that branch of the City's motion which was for summary judgment dismissing the complaint in Action No. 1 and dismissing the complaint in Action No. 2 insofar as asserted against it. The plaintiffs in both actions appeal, and we affirm.
A municipality is obligated to keep the streets within its jurisdiction in a reasonably safe condition for travel ( see Gonzalez v. City of New York, 148 A.D.2d 668, 670, 539 N.Y.S.2d 418; Hooker v. Town of Hanover, 247 App.Div. 623, 625, 288 N.Y.S. 290). "To render a municipality liable for an injury caused by the presence of snow and ice on the streets," the plaintiff must establish that "the condition constitutes an unusual or dangerous obstruction to travel and that either the municipality caused the condition or a sufficient time had elapsed to afford a presumption of the existence of the condition and an opportunity to effect its removal" ( Gonzalez v. City of New York, 148 A.D.2d at 670, 539 N.Y.S.2d 418; see Williams v. City of New...
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