Ortiz v. Itzcowitz

• Decision Date: 26 March 2021
• Docket Number: Index No. EF001884/2020,Motion Seq. Nos. 1,2,3
• Citation: 2021 NY Slip Op 33784 (U)
• Parties: EMILIO ORTIZ, PLAINTIFF, v. MAYA S. ITZCOWITZ, TOWN OF WOODBURY VILLAGE OF WOODBURY, VILLAGE OF WOODBURY HIGHWAY DEPARTMENT, TOWN OF MONROE, TOWN OF MONROE HIGHWAY DEPARTMENT, and VILLAGE OF HARRIMAN, DEFENDANTS.
• Court: New York Supreme Court

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2021 NY Slip Op 33784(U)

EMILIO ORTIZ, PLAINTIFF, v. MAYA S. ITZCOWITZ, TOWN OF WOODBURY VILLAGE OF WOODBURY, VILLAGE OF WOODBURY HIGHWAY DEPARTMENT, TOWN OF MONROE, TOWN OF MONROE HIGHWAY DEPARTMENT, and VILLAGE OF HARRIMAN, DEFENDANTS.

Index No. EF001884/2020, Motion Seq. Nos. 1, 2, 3

Supreme Court, Orange County

March 26, 2021

Unpublished Opinion

Motion Date: 12/29/2020

To commence the statutory time for appeals of right (CPLR 5513 [a], you are advised to serve a copy of this order, with notice of entry, on all parties.

At a term of the IAS Part of the Supreme Court of the State of New York, held in and for the County of Orange, at the 285 Main Street, Goshen, New York 10924 on the 26th day of March 2021.

DECISION& ORDER

HON MARIA S. VAZQUEZ-DOLES, J.S.C.

The following papers numbered 1 to 14 were read on the motions by Defendants, TOWN OF MONROE and TOWN OF MONROE HIGHWAY DEPARTMENT(collectively "Town of Monroe")(Mot Seq. #1); Defendants, VILLAGE OF WOODBURY and VILLAGE OF WOODBURY HIGHWAY DEPARTMENT(collectively "Village of Woodbury")(Mot. Seq. #2); and Defendant, VILLAGE OF HARRIMAN(Mot. Seq. #3) for summary judgment pursuant to CPLR 3212 dismissing the complaint and all cross-claims against each defendant.The motions are consolidated for purposes of this decision:

Mot. Seq. #1

Notice of Motion/Affirmation (Zefi)/ Exhibits A - E............................................1-13

Mot. Seq. #2

Notice of Motion/Affirmation (Martens)/Supporting Affidavit/Exhibits A-K ...............................4-7

Affirmation in Opposition (Cambareri) ......................................8

Reply Affirmation (Martens)/Supplemental Affidavit/ExhibitsA-C...............................9-11

Mot. Seq. #3

Notice of Motion/Affidavit (Cook) .................................12

Affirmation in Opposition (Cambareri).......................................13 Reply Affirmation (Cook).......................................................14

Plaintiff alleges that he was injured as a result of a motor vehicle accident on December 18,2018 while he was driving on State Highway 17 at or near Exit 131.Specifically, as set forth in the Notice of Claim, Plaintiff alleges that the accident occurred while he was traveling up the exit ramp and another vehicle was traveling down the exit ramp the wrong way due to lack of signage and lighting on the construction area.Plaintiff commenced this action with the filing of a Summons and Complaint on March 6,2020.Issue was joined by the filing of an Answer on behalf of defendantVillage of Harriman on or about June 18,2020, on behalf of defendantsVillage of Woodbury on or about June 26,2020, on behalf of defendantTown of Woodbury on or about June 30,2020, on behalf of defendantMaya S. Itzkowitz on or about August 11,2020, and on behalf of defendantTown of Monroe on or about September 1,2020.

In its motion for summary judgment, the Town of Monroe argues that the location of the alleged accident at State Highway 17 at/near Exit 131 is not located within or maintained by the Town of Monroe.Further, that they had no written notice of any dangerous or defective condition alleged by the plaintiff to have caused the accident and that no exception to the statutory notice requirement applies as the Town of Monroe did not cause or create the condition alleged.In support of their motion, the Town of Monroe submits the affidavit of Mary Ellen Beams, Town Clerk.Ms. Beams avers that she is fully familiar with the Town of Monroe's jurisdictional boundaries and that the alleged accident location, State Highway 17 at/near Exit 131, is not located within the Town of Monroe.Moreover, the Town of Monroe had no involvement in the "Route 17/Exit 131 Reconstruction Project."As custodian of the Town's written notice records, she searched the records and confirms that the Town of Monroe did not receive any prior written notice of the alleged dangerous condition.

Plaintiff, in failing to submit any opposition, concedes that the accident site is not located within the Town of Monroe; that the Town of Monroe had no involvement in the construction project; that the Town of Monroe did not create the defect and that there was no prior written notice of the defect.Further, no opposition has been submitted by co-defendants.

Accordingly, the Town of Monroe has established prima facie its entitlement to summary judgment dismissing the complaint and all cross-claims as against them.

The Village of Woodbury moves to dismiss the complaint based on the same argument as the Town of Monroe; the subject accident location is not located within the Village of Woodbury and that the Village of Woodbury does not own, maintain, repair or control the accident location.In support of their motion they submit the Affirmation of Highway Superintendent for the Village, Robert Weyant.Mr. Weyant avers that he is fully familiar with the jurisdictional boundaries of the Village of Woodbury by nature of his position as Superintendent of Highways and that the alleged accident location is not located within the Village of Woodbury and is not owned, maintained, repaired, or controlled by the Village of Woodbury.He further avers that the Village of Woodbury was not involved in any manner with the "Route 17/Exit 131 Reconstruction Project also known as the "Route 17 at Exit 131 Interchange Project."

" 'It has long been established that a governmental body, be it the State, a county or a municipality, is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition, and that liability will flow for injuries resulting from a breach of the duty'"(Dutka v. Odierno,145 A.D.3d 661, 665[2d Dept2016], quotingLopes v. Rostad,45 N.Y.2d 617, 623[1978];seeStiuso v. City of New Fork, 87 N.Y.2d 889, 890[1995]).However, a governmental body generally "will not be held responsible for the negligent design of a highway it does not own or control"(Carlo v. Town of E. Fishkill,19 A.D.3d 442,442[2d Dept2005];seeErnest v. Red Cr. Cent. School Dist.,93 N.Y.2d 664, 675[1999];Flynn v. Hanken,17 A.D,3d 523,524[2d Dept2005]).Similarly, a governmental body "cannot be held liable for the failure to maintain in a reasonably safe condition a road it does not own or control unless it affirmatively undertakes such a duty"(Carlo v. Town of E. Fishkill,19 A.D.3d at 442;seeHorn v. Town of Clarkstown,46 A.D.3d 621, 622[2d Dept2007]).

Here, the Village of Woodbury sustained its initial burden of demonstrating its entitlement to judgment as a matter of law by submitting evidence that the accident occurred on a State highway which it did not own (seeAlcalay v. Town of North Hempstead,262 A.D.2d 258[2d Dept1999];Silver v. Cooper,199 A.D.2d 255[2d Dept1993]).The evidence submitted in opposition by the plaintiff is insufficient to raise any triable issue of fact, (seeErnest v. Red Creek Cent. School Dist., supra;Kovalsky v. Village of Yaphank, supra)

Plaintiffscounsel argues that the Village of Woodbury has failed to show prima facie entitlement to summary judgment because no map or other...