Smith v. City of New York

• Docket Number: 2018–14531,Index No. 705492/14
• Decision Date: 21 September 2022
• Citation: 210 A.D.3d 53,175 N.Y.S.3d 529
• Parties: Jeri SMITH, respondent-appellant, v. CITY OF NEW YORK, appellant-respondent, Malcolm Pirnie, Inc., defendant third-party plaintiff-respondent, WDF, Inc., defendant second third-party plaintiff-respondent, John P. Picone, Inc., defendant third-party defendant/second third-party defendant-respondent; et al., second third-party defendant.
• Court: New York Supreme Court — Appellate Division

210 A.D.3d 53

175 N.Y.S.3d 529

Jeri SMITH, respondent-appellant,

v. CITY OF NEW YORK, appellant-respondent,Malcolm Pirnie, Inc., defendant third-party plaintiff-respondent,WDF, Inc., defendant second third-party plaintiff-respondent,John P. Picone, Inc., defendant third-party defendant/second third-party defendant-respondent; et al., second third-party defendant.

2018–14531

Index No. 705492/14

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

Argued—April 8, 2022

September 21, 2022

Chesney, Nicholas & Brower LLP, Syosset, NY (Rudolph Petruzzi and Lindsie B. Alterkun of counsel), for appellant-respondent.

Scott Baron & Associates, P.C., Howard Beach, NY, for respondent-appellant.

Hannum Feretic Prendergast & Merlino, LLC, Mineola, NY (Gail J. McNally of counsel), for defendant third-party plaintiff-respondent.

La Salle, La Salle & Dwyer, P.C., Sea Cliff, NY (Sean P. Dwyer of counsel), for defendant second third-party plaintiff-respondent.

Newman Myers Kreines Gross Harris, P.C., New York, NY (Patrick M. Caruana and Charles D. Cole, Jr., of counsel), for defendant third-party defendant/second third-party defendant-respondent.

VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, JOSEPH A. ZAYAS, LARA J. GENOVESI, JJ.

OPINION & ORDER

MILLER, J.

Prior notification laws are a valid exercise of legislative authority and reflect a legislative decision to modify the legal duty of care owed by a locality to individuals. Where a locality has enacted a prior notification law and is alleged to be liable for personal injuries sustained as a result of a defective condition, the locality establishes a defense as a matter of law by demonstrating that it did not receive prior written notice of the defective condition. Under such circumstances, the plaintiff must demonstrate the applicability of an exception to such a defense in order to avoid dismissal.

While these general principles are not in doubt, their application within the procedural framework of a motion for summary judgment has not always been uniform. Given this lack of consistency, we take this opportunity to clarify the correct burden-shifting standard on a motion for summary judgment. Where a locality establishes, prima facie, that it was not provided with prior written notice, the burden shifts to the plaintiff to demonstrate the applicability of an exception to that defense. As set forth more fully below, this burden-shifting standard should be applied even when the complaint affirmatively alleges that an exception is applicable. To the extent that this Court's case law conflicts with these principles, it should no longer be followed.

I. Factual and Procedural Background

The plaintiff was a site safety inspector for construction work performed by certain contractors at the New York City Tallman Island Wastewater Treatment Plant located in College Point, Queens. As the plaintiff walked back to her vehicle one morning after a routine safety inspection at the facility, she slipped on black ice that was present on the access road.

A. The Pleadings

1. The Complaint

The plaintiff commenced this action to recover damages for personal injuries against: (1) the City of New York, (2) Arcadis U.S., Inc. (hereinafter Arcadis), and (3) WDF, Inc. (hereinafter WDF). The complaint asserted two causes of action against each defendant, for a total of six causes of action. The first cause of action was asserted against the City and alleged that the City owned certain premises "known as and by the address of Tallman Island WWTP, 127–01 Powells Cove Boulevard, College Point, N.Y. 11356," where it operated a certain facility under the auspices of the "NYC DEPARTMENT OF ENVIRONMENTAL PROTECTION."

The first cause of action alleged that the plaintiff "was caused [to] slip and or trip and fall" due to the City's negligence in "failing to remove snow and/or ice[,] ... failing to spread salt and/or sand, ... improperly shoveling snow[, and] negligently shoveling snow." The first cause of action also alleged that the City was negligent "in causing ... a trap, hazard and nuisance to be and exist for an excessive and unreasonable period of time." It more broadly alleged that the City "caused and created the aforesaid dangerous and defective conditions."

The second cause of action was also asserted against the City and alleged violations of Labor Law § 241(6).

The remaining portions of the complaint repeated the same two causes of action against each of the other two defendants. In other words, the third and fifth causes of action sounded in negligence against Arcadis and WDF, respectively, and the fourth and sixth causes of action alleged violations of Labor Law § 241(6) against Arcadis and WDF, respectively.

2. Responsive Pleadings

Malcolm Pirnie, Inc. (hereinafter Pirnie), asserted that it was incorrectly sued in the complaint as Arcadis. Pirnie interposed an answer to the complaint, which included a cross claim against WDF. The City and WDF jointly interposed an answer, which included four cross claims against Arcadis. The City later interposed its own separate amended answer, which included a cross claim against Arcadis and WDF.

Pirnie commenced a third-party action against John P. Picone, Inc. (hereinafter Picone), and WDF commenced a second third-party action against Picone and Pro Safety Services, LLC (hereinafter Pro Safety).

3. The Amended Complaint

The plaintiff filed an amended complaint naming four defendants: (1) the City, (2) Pirnie, (3) WDF, and (4) Picone. The amended complaint repeated the same two causes of action sounding in negligence and violations of Labor Law § 241(6) against each defendant, for a total of eight causes of action.

The two causes of action asserted against the City in the amended complaint were the same as the two causes of action asserted in the original complaint. As relevant here, the first cause of action again alleged that the City "caused and created ... dangerous ... conditions."

4. Additional Responsive Pleadings

Pirnie answered the amended complaint. In its answer, Pirnie asserted a cross claim against WDF and Picone.

The City answered the amended complaint. In its answer, the City asserted a cross claim against Pirnie, WDF, and Picone.

Picone answered the third-party complaint and also answered the amended complaint. Picone later served an amended answer to the amended complaint. In its amended answer, Picone asserted a cross claim against the City, Pirnie, WDF, and Pro Safety.

Finally, WDF answered the amended complaint. In its answer, WDF asserted four cross claims against Pirnie and four cross claims against Picone.

B. The Underlying Motion Practice

1. Pirnie's Motion

Pirnie moved for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against it. Pirnie contended, among other things, that it did not own the property where the accident occurred, and that it had no duty to remove snow or ice. "As such," Pirnie contended, "[it] did not create the alleged dangerous condition."

2. WDF's Motion

WDF separately moved for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against it. WDF contended, among other things, that it had "no duty" and "no authority or obligation to maintain the area where [the] plaintiff fell." WDF asserted that it "did not create the condition" and could not be held liable for the plaintiff's accident.

3. The City's Motion

The City separately moved for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against it. The City argued, inter alia, that it did not receive prior written notice of the allegedly dangerous condition, as required by the applicable written notice law (see Administrative Code of City of N.Y. § 7–201) to impose liability against the City for defects or dangerous conditions.

As relevant here, the City argued:

"In its initial motion papers, The City does not have the burden of proving the exceptions to Administrative Code § 7–201 such as the cause and create exception. The courts have found that a municipality meets its burden to warrant an order granting summary judgment when it has demonstrated the absence of prior written notice under § 7–201(c). The burden then shifts to the party opposing the motion to demonstrate a triable issue of fact to defeat the Motion for Summary Judgment, such as an exception to the prior written notice law."

4. Picone's Motion

Picone separately moved for summary judgment dismissing the amended complaint, all cross claims, the third-party complaint, and the amended second third-party complaint insofar as asserted against it. Picone contended, among other things, that the Labor Law was "not applicable to a slip and fall on a roadway open for vehicular traffic." Picone further contended that it "did not create the black ice and did not control" the access road.

C. The Order Appealed and Cross–Appealed From

In an order entered December 4, 2018, the Supreme Court, inter alia, granted those branches of the defendants’ separate motions which were for summary judgment dismissing the causes of action alleging violations of Labor Law § 241(6), i.e., the second, fourth, sixth, and eighth causes of action. In this regard, the court determined that the only Industrial Code provision relied upon by the plaintiff as a predicate for liability under Labor Law § 241(6) was not applicable to the facts of this case.

As relevant here, the Supreme Court denied those branches of the City's motion which were for summary judgment dismissing the remaining cause of action asserted against it, i.e., the first cause of action, and all cross claims insofar as asserted against it:

"In the instant matter, the City established that it did not receive prior written notice of the alleged dangerous condition. Nonetheless, it failed to meet its burden of demonstrating its prima facie entitlement to judgment as a matter of law. ‘[T]he prima facie showing which a defendant must make on a motion for summary judgment is

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