Poveromo v. Town of Cortlandt

• Decision Date: 08 April 2015
• Docket Number: 2013-08807, Index No. 55879/11.
• Citation: 6 N.Y.S.3d 617,2015 N.Y. Slip Op. 02950,127 A.D.3d 835
• Parties: Peter POVEROMO, et al., respondents, v. TOWN OF CORTLANDT, et al., appellants.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 835

6 N.Y.S.3d 617

2015 N.Y. Slip Op. 02950

Peter POVEROMO, et al., respondents

v.TOWN OF CORTLANDT, et al., appellants.

2013-08807, Index No. 55879/11.

Supreme Court, Appellate Division, Second Department, New York.

April 8, 2015.

Hodges Walsh Messemer & Moroknek, LLP, White Plains, N.Y. (Paul E. Svensson of counsel), for appellant Town of Cortlandt.

Andrea G. Sawyers, Melville, N.Y. (David R. Holland of counsel), for appellants Daniel W. Dondero and Karol A. Dondero.

John D. Randazzo, Hawthorne, N.Y. (Lisa Solomon of counsel), for respondents.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

Opinion

In an action, inter alia, to recover damages for personal injuries, the defendant Town of Cortlandt appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Smith, J.), dated July 19, 2013, as denied its motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against it, and the defendants Daniel W. Dondero and Karol A. Dondero separately appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Town of Cortlandt which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged that it was liable for an allegedly dangerous limited sight condition created by an evergreen tree, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with one bill of costs to the plaintiffs payable by the defendants Daniel W. Dondero and Karol A. Dondero.

The plaintiff Peter Poveromo (hereinafter the injured plaintiff) allegedly was injured in a motorcycle accident that occurred at the intersection of Fairview Place and Waterbury Parkway in the defendant Town of Cortlandt. The injured plaintiff, and his wife suing derivatively, commenced this action against the Town and the defendants Daniel W. Dondero and Karol A. Dondero (hereinafter together the Donderos), who owned a parcel of property adjoining the subject intersection. The plaintiffs alleged that the Donderos were negligent in that they, among other things, in violation of a provision of the Town Code of the Town of Cortlandt (hereinafter the Town Code), allowed a large evergreen tree to remain on their property which obscured the vision of motorists navigating the subject intersection. With respect to the Town, the plaintiffs alleged, inter alia, that the Town was negligent in that it allowed the allegedly dangerous limited sight condition created by the evergreen tree to remain. The plaintiffs also alleged that the Town was negligent in creating a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection.

The Town moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, or alternatively, for summary judgment dismissing the complaint insofar as asserted against it. The Town argued, among other things, that it did not have prior written notice of the alleged dangerous conditions as required by the Town Code, that it was entitled to qualified immunity with regard to the road design and striping, and that it could not be held liable because the injured plaintiff's actions were the sole proximate cause of his injuries. The Donderos separately moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that they could not be held liable because the injured plaintiff's actions were the sole proximate cause of his injuries. The Supreme Court denied both motions. We modify.

The Supreme Court should have granted that branch of the Town's motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged that it was liable for the allegedly dangerous limited sight condition created by the evergreen tree on the Donderos' property. As the Town correctly argues, any allegation that vegetation obstructed a driver's view of the intersection and of traffic on the intersecting roadways is subject to its prior written notice statute (see Dutka v. Odierno, 116 A.D.3d 823, 983 N.Y.S.2d 405 ; Dworkin v. Ecolab, Inc., 283 A.D.2d 544, 725 N.Y.S.2d 218 ; Forsythe–Kane v. Town of Yorktown, 249 A.D.2d 505, 672 N.Y.S.2d 355 ; Bounauito v. Floyd School Dist., 203 A.D.2d 225, 609 N.Y.S.2d 661 ). Here, since the plaintiffs did not allege that the Town had prior written notice of any obstructed sight lines in and around the subject intersection, the Supreme Court should have granted that branch of the Town's motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged that it was liable based upon the evergreen tree (see Dutka v. Odierno, 116 A.D.3d 823, 824, 983 N.Y.S.2d 405 ).

However, the Supreme Court properly denied that branch of the Town's motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint as alleged that the Town negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection. The prior written notice provision of the Town Code does not apply to a claim that a municipality allegedly created a defect or hazard through an affirmative act of negligence (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ), such as the Town's allegedly negligent act of painting certain street lines, or to a claim that the municipality failed to provide appropriate traffic control devices at an intersection (see Hughes v. Jahoda, 75 N.Y.2d 881, 554 N.Y.S.2d 467, 553 N.E.2d 1015 ; Alexander v. Eldred, 63 N.Y.2d 460, 483 N.Y.S.2d 168, 472 N.E.2d 996 ; Forsythe–Kane v. Town of Yorktown, 249 A.D.2d 505, 672 N.Y.S.2d 355 ; Bounauito v. Floyd School Dist., 203 A.D.2d 225, 609 N.Y.S.2d 661 ).

The Town also failed to establish its prima facie entitlement to judgment as a matter of law dismissing so much of the complaint as alleged that it negligently created a dangerous condition by painting certain street lines and by failing to install appropriate traffic control devices at the subject intersection, based upon the defense of qualified immunity. “It has long been held that a municipality owe[s] to the public the...