Motion by defendants' to dismiss claim is granted to State of New York and denied to the New York State Canal Corporation and Thruway Authority. The Court finds that these defendants failed to establish as a matter of law that they had no duty to warn of the foreseeable danger of a collision that was created by the driveway access to a pedestrian bike path.
|Claimant(s):||DARNELLE BRADY & RONALDO PARKER|
|Claimant short name:||BRADY, PARKER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY, NEW YORK STATE CANAL CORPORATION|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||BROWN CHIARI, LLP
BY: Timothy M. Hudson, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Timothy J. Flynn, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 23, 2020|
|See also (multicaptioned case)|
Claimants Darnelle Brady and Ronaldo Parker filed claim no. 123604 in which they allege that on June 20, 2012 they were walking along a pedestrian/bicycle path (bike path) south of the intersection of Oliver and Sweeney Streets in the City of North Tonawanda when they were struck and injured by a vehicle driven by Anthony Regalla. Immediately prior to the accident, Regalla had been traveling southbound on Oliver Street, when he crossed Sweeney Street and entered the bicycle path and struck the claimants. The property was owned by defendant New York State Canal Corporation (Canal Corporation). On November 4, 2013, claimants served the claim upon the Office of the New York Attorney General and the defendants filed a verified answer on January 24, 2014. The defendants now bring a motion to dismiss pursuant to CPLR § 3212. The claimants oppose this motion.
The claimants' verified bill of particulars alleges that the defendants were negligent in failing to properly design, construct and maintain the bike path; failing to properly mark the bike path with proper signage and pavement markings to notify vehicular traffic and prohibit vehicle entry; failing to employ proper traffic control devices, barriers, barricades, bollard or other adequate safety measures to safeguard pedestrian travel along the bike path so as to physically prevent or deter motor vehicles from accessing the bike path. In its answer, the defendants assert that they raised as an affirmative defense that the culpable conduct of persons, corporations and/or other entities not a party to this claim caused or contributed, in whole, or in part, the occurrence and the injuries allegedly sustained by claimants.
On April 13, 2000, the City of North Tonawanda (North Tonawanda) submitted an application for a permit to the Canal Corporation to construct a canalway trail on property owned by the Canal Corporation. On June 14, 2000, the Canal Corporation approved North Tonawanda's application and issued a work permit, permit no. 026E700 (Exhibit G). The work to be performed by North Tonawanda under this permit was to construct an asphalt walkway on Canal Corporation property adjacent to the Erie Canal between Oliver Street and Payne Avenue. The work permit at paragraph 8 contains a provision benefitting the Canal Corporation and the NYS Thruway Authority (Thruway Authority) which requires North Tonawanda to indemnify them from all liability and claims arising out of the negligence or use of the property. At paragraph 13, the work permit states that North Tonawanda will be responsible for maintenance of the bike path.
A real estate permit for the continued use and occupancy of this property was later executed by North Tonawanda and approved by the Canal Corporation and a real estate permit was then issued on September 18, 2000 (Exhibit H). The real estate permit at paragraph 6 contains an indemnification provision to all three defendants from any loss or claim by reason of any use or misuse of the bike path. Defendants allege that since the issuance of the work permit and the real estate permit, North Tonawanda has been responsible for the design, construction, operation and maintenance of the bike path which is the subject of this litigation. In addition to the indemnification provision, the real estate permit also contains an insurance provision at paragraph 7 requiring North Tonawanda to "provide a certificate of general liability insurance in the amount of $2,000,000.00 (combined property damage and/or bodily injury, including death) single limit per occurrence" for the protection of the defendants as additional insureds. The defendants allege that they did not participate in the design, construction, operation or maintenance of the bike path.
In opposition, claimants state that it is not disputed that North Tonawanda, pursuant to the work permit, constructed the bike path and entranceway onto the bike path and then continued to maintain and operate the bike path on state owned property. However, claimants contend that the real estate permit with North Tonawanda obligating it to indemnify the defendants in the event of a claim such as this litigation does not affect the defendants' duty to third parties, like the claimants. In support of their contention, claimants refer to the deposition of Richard P. Manns, Deputy Division Canal Engineer for the Canal Corporation (Exhibit D). During his deposition, it was corroborated by Mann that the existing curb cut connecting the bike path with Sweeney Street was not reflected in the plan documents originally submitted to the Canal Corporation by North Tonawanda. He testified that had the curb been reflected in the plans submitted with the permit additional review would have been conducted as to its width, as well as the installation of signage stating "No Motor Vehicles." Besides this signage, Manns testified that they would "not necessarily" have required any physical barrier excluding motor vehicles from the entranceway to the bike path. He also stated that during the construction of the bike path, the Canal Corporation did not go to the location to oversee or inspect the construction in any way. Following completion of the bike path, Manns testified that they would have performed a cursory review of the bike path. He also testified that after the construction was completed, he did go to the intersection of Oliver and Sweeney Streets and observed that there were no signs excluding motor vehicles from the entranceway to the bike path. Manns testified that the curb cut depicted in photo Exhibit 5 at his deposition looked too large and he agreed that it could invite motor vehicle traffic. Claimants also include with their opposing affidavit a portion of the 1998 Manual of Uniform Traffic Control Devices (MUTCD) indicating that a "No Motor Vehicles" prohibition sign is recommended and intended for use at the entrance to a bicycle trail (Exhibit B).
The claimants also reference the decision of the Appellate Division, Fourth Department in the Supreme Court companion action. This decision reversed the lower court's decision which had granted defendant North Tonawanda summary judgment (Brady v City of N. Tonawanda, 161 AD3d 1526 [4th Dept 2018]). In the Supreme Court action, plaintiffs alleged that North Tonawanda was negligent in "creating driveway access" to the park path without "install[ing] any type of barricade, bollard, or like device to prevent or deter vehicles from entering the bike path on which pedestrian and bicycle traffic was expected." North Tonawanda did not dispute that it paved the driveway during its development of the park, thereby creating the condition upon which the complaint was based. The Fourth Department ruled that North Tonawanda failed to establish as a matter of law that it had no duty to warn of foreseeable danger of collision created by the driveway access. In addition, the Fourth Department ruled that a jury could reasonably conclude that in addition to the driver's (Regalla's) actions, North Tonawanda's creation of an unobstructed, paved driveway directly connecting the street to the similarly paved park path was also a proximate cause of plaintiffs' injuries. For all of these reasons, the Fourth Department reversed the lower court and denied North Tonawanda summary judgment.
In general, an owner has a duty to maintain its property in a reasonably safe condition in view of all circumstances, which includes evaluating the likelihood of injury to others, the seriousness of the injury and the burden to avoid that risk (Preston v State of New York, 59 NY2d 997 ; Basso v Miller, 40 NY2d 233 ). Where a hazardous or dangerous condition is alleged to exist, the owner may be held liable where it has actual or constructive notice of the hazardous condition and fails to take reasonable measures to correct the danger (see Friedman v State of New York, 67 NY2d 271, 286 ). And whether a dangerous or defective condition exists on property so as to create liability depends on the particular facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976 ).
In a motion for summary judgment, the moving party is required to make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to eliminate all material issues of fact (Zuckerman v City of New York, 49 NY2d 557 ). In the present motion, the defendants submitted the work permit and real estate permit and contend that the indemnification provision stating that North Tonawanda is responsible for any repairs, improvements or maintenance work of any kind on the bike path is dispositive of all issues. I find, however, that this only establishes the basis for a declaratory judgment action against North Tonawanda. Defendants' motion papers do not address the issue of the duty of care owed by the defendant owners of the property upon issuance of the real estate permit.
The defendants' motion papers state that when North Tonawanda applied for a work permit to construct the pedestrian bike path they were required to submit to the Canal Corporation, among other items, stamped plans including a location map, details and specifications (Exhibits E and D). These plans had to be approved by the Canal Corporation before any work permit would be issued. On June 14, 2000, correspondence was sent by Mr. Manns on behalf of the Canal Corporation advising North Tonawanda that the work permit for the bike path had been approved and the work permit was issued (Exhibits G and D). The deposition testimony of Mr. Manns revealed that when constructed, a large curb cut was made opposite the T-intersection of Oliver and Sweeney Streets that was not a part of the plans originally submitted by North Tonawanda. The width of this curb cut was described by Manns as being too wide and that it could invite vehicular traffic. He further testified that had he been aware that a curb cut was to be constructed, its proposed width would have been reviewed and signage indicating "No Motor Vehicles" may have been required. In opposition to this motion, claimants also submitted a provision of the 1998 Manual of Uniform Traffic Control Devices (MUTCD) indicating that a "No Motor Vehicles" prohibition sign is recommended and intended for use at the entrance to a bicycle trail (Exhibit B).
As such, the defendants motion for summary judgment fails for the same reason that the Fourth Department reversed the lower court's decision in the Supreme Court companion action, i.e., these defendants "failed to establish as a matter of law that [they] had no duty to warn of the foreseeable danger of collision created by this driveway access" (Brady, supra at 1527). Canal Corporation's approval of the plans and its failure to properly inspect North Tonawanda's work and require that North Tonawanda either narrow the width of the curb, cut the curb or remove it altogether and/or require that North Tonawanda erect signage at the entranceway stating "No Motor Vehicles" create issues of fact relating to Canal Corporation's duty as the owner of this property. In this regard, it is clear from the documentary evidence presented in support of this motion that the Canal Corporation is the owner of the property and any liability in this action will arise from that ownership. Accordingly, the Court will dismiss the claim as against the State of New York. Furthermore, the deposition testimony of Manns stating that the Canal Corporation did not go to the location to oversee or inspect the construction of the pedestrian bike path does not absolve the defendant of liability as contended by defendants' counsel in his reply affidavit (para. 8) but rather, creates an issue of fact as to whether an inspection during the bike path's construction would have resulted in the removal or narrowing of the curb cut. As the Canal Corporation and the Thruway Authority cannot eliminate these issues of fact, this Court must deny their motion for summary judgment. The remaining defendants' alternative remedy, as it has always been throughout this litigation, is to enforce its agreement with North Tonawanda by commencing a declaratory judgment action.
Based on the foregoing, defendants' motion no. M-95865 for summary judgment is granted dismissing the State of New York and denied as to the Canal Corporation and the Thruway Authority.
December 23, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following have been read and considered by the Court:
1) Notice of motion and affidavit of Assistant Attorney General Timothy J. Flynn, Esq., dated August 25, 2020 with annexed Exhibits A-J;
2) Affidavit of Timothy M. Hudson, Esq., sworn to September 15, 2020, with annexed Exhibits A and B; and
3) Reply affidavit of Assistant Attorney General Timothy J. Flynn, Esq., sworn to September 21, 2020.