Warren v. City of Peekskill

• Citation: 2020 NY Slip Op 35058 (U)
• Decision Date: 09 December 2020
• Docket Number: 52779/2019,Mot. Seqs. 1 & 2
• Parties: EDWARD WARREN, Plaintiff, v. THE CITY OF PEEKSKILL, MORGAN HUDSON VIEW, LLC, HUDSON FEE I LLC and EAGLE ROCK MANAGEMENT, LLC, Defendants.
• Court: New York Supreme Court

2020 NY Slip Op 35058(U)

EDWARD WARREN, Plaintiff,
v.
THE CITY OF PEEKSKILL, MORGAN HUDSON VIEW, LLC, HUDSON FEE I LLC and EAGLE ROCK MANAGEMENT, LLC, Defendants.

No. 52779/2019, Mot. Seqs. 1 & 2

Supreme Court, Westchester County

December 9, 2020

Unpublished Opinion

Return Date: 11/18/2020

DECISION/ORDER

HON. LAWRENCE H. ECKER, J.S.C.

In accordance with CPLR 2219 (a), the decision herein is made upon considering all papers filed in NYSCEF as submitted relative to the following two motions: (1) by codefendants HUDSON FEE I LLC and EAGLE ROCK MANAGEMENT, LLC (Mot. Seq. 1), made pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint and cross claim as asserted against them; and (2) by defendant THE CITY OF PEEKSKILL (Mot. Seq. 2), made pursuant to CPLR 3212, for an order granting summary judgment dismissing the complaint as asserted against it.

Plaintiff alleges he sustained serious injuries as a result of a trip and fall in a pothole that was in the City of Peekskill on May 9, 2018. The pothole is within the roadway of Lakeview Drive, a public highway, and is adjacent to the driveway leading from Lakeview Drive to an apartment complex with an address of 2 Lakeview Drive, which is owned by Hudson Fee I LLC (hereinafter "Hudson") and managed by Eagle Rock Management, LLC (hereinafter "Eagle").

As a result, plaintiff commenced this personal injury action against defendants. Hudson and Eagle interposed an answer, asserting affirmative defenses and a cross claim of negligence or indemnification against the City of Peekskill (hereinafter "the City") and Morgan Hudson View LLC.^[1] The City answered asserting similar defenses and a cross claim against Hudson and Eagle.

1

Following discovery, Hudson and Eagle collectively move for summary judgment to dismiss the complaint and cross claim against them. The City separately moves for summary judgment to dismiss the complaint as against it. They contend on different grounds that they are not liable for plaintiff's injuries. Plaintiff filed the note of issue in September 2020.

It is well settled that the proponent of the summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 560 [1980]; De Souza v Empire Tr. Mix, Inc., 155 A.D.3d 605, 606 [2d Dept 2017]). Importantly, "[o]nce this showing has been made, the burden then shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 N.Y.2d at 324; see De Souza v Empire Tr. Mix, Inc., 155 A.D.3d at 606). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to create a material issue of fact" (Zuckerman v City of New York, 49 N.Y.2d at 562; see Hammond v Smith, 151 A.D.3d 1896, 1898 [4th Dept 2017], lv denied 153 A.D.3d 1677 [2017]).

On a summary judgment motion, a court is obligated to determine whether there are issues of fact that militate against granting that relief to the parties. Moreover, "[i]t is not the court's function on a motion for summary judgment to assess [issues of] credibility" (Chimbo v Bolivar, 142 A.D.3d 944, 945 [2d Dept 2016]; Garcia v Stewart, 120 A.D.3d 1298, 1299 [2d Dept 2014]), nor to "engage in the weighing of evidence" (Chimbo v Bolivar, 142 A.D.3d at 945; Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]). "Resolving questions of credibility, determining the accuracy of witnesses, and reconciling the testimony of witnesses are for the trier of fact" (Bykov v Brody, 150 A.D.3d 808, 809 [2d Dept 2017]; accord Kahan v Spira, 88 A.D.3d 964, 966 [2d Dept 2011]). Thus, "[a] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2010]).

I. Hudson and Eagle's Motion (Seq. 1)

Hudson and Eagle argue that the record clearly demonstrates that plaintiff tripped and fell on a pothole located in a public roadway that is owned by the City, not on any property owned or maintained by them and, thus, they owed no duty to plaintiff to maintain the public roadway. They further contend that the special use exception does not apply to this case (see Amabile v City of Buffalo, 93 N.Y.2d 471, 474 [1999]; Politis v Town of Islip, 82 A.D.3d 1191, 1192 [2d Dept 2011]; Jason v Town of N. Hempstead, 61 A.D.3d 936, 937 [2d Dept 2009]).

Plaintiff did not file opposition to Hudson and Eagle's motion. As was marked by plaintiff and unrefuted by him, it is clear from the photographs that the pothole in question was well away from the curb line and within the roadway of Lakeview Drive. Hudson and Eagle thus demonstrated that they did not have a duty to maintain the subject area of the roadway in which plaintiff tripped and fell (see Cimino v City of White Plains, 65 A.D.3d 1069, 1071 [2d

2

Dept 2009]; see also Wood v City of New York, 98 A.D.3d 845, 845 [1st Dept 2012]). Accordingly, Hudson and Eagle's motion for summary judgment dismissing the complaint insofar as asserted against them, is granted.

II. The City's Motion (Seq. 2)

Turning next to the City's motion, it argues that it is entitled to summary judgment because, as a municipality, it had not received prior written notice of the alleged dangerous...