| Gagnon v City of Saratoga Springs |
| 2008 NY Slip Op 04021 [51 AD3d 1096] |
| May 1, 2008 |
| Appellate Division, Third Department |
| Joyce Gagnon et al., Appellants, v City of Saratoga Springs,Respondent. |
—[*1] FitzGerald, Morris, Baker & Firth, P.C., Glens Falls (John D. Aspland Jr. of counsel), forrespondent.
Peters, J. Appeal from an order of the Supreme Court (Williams, J.), entered May 10, 2007 inSaratoga County, which granted defendant's motion for summary judgment dismissing thecomplaint.
On July 4, 2002 plaintiff Joyce Gagnon (hereinafter plaintiff) and her family attended afireworks display in Congress Park in the City of Saratoga Springs, Saratoga County sponsoredby defendant. Before the display ended, plaintiff and her family began to exit the park along acrowded paved walkway. Due to the congestion on the walkway, plaintiff traversed a grassy areawhich led to a street that exited the park. Upon reaching the point where the grass ended,plaintiff's foot caught the lip of the curb, which was slightly higher in elevation than the grassyarea, causing her to fall onto the pavement and sustain numerous injuries.
Plaintiff and her husband, derivatively, timely filed a notice of claim and subsequentlycommenced this action against defendant, alleging that defendant was negligent in failing tomaintain adequate lighting in the park and negligently constructed, designed and maintained thecurb upon which plaintiff tripped. Prior to joinder of issue, defendant moved to dismiss thecomplaint and, upon Supreme Court's denial of the motion, this Court affirmed (14 AD3d 845[2005]). Defendant thereafter moved for summary judgment dismissing the complaint, alleging,among other things, that it had no prior written notice of any alleged defect as required bySaratoga Springs City Charter § C-55 and that it had no duty to provide lighting at thelocation of [*2]plaintiff's fall. In opposition, plaintiffs contendedthat defendant affirmatively created the allegedly dangerous conditions, thereby obviating theprior written notice requirement. Supreme Court granted defendant's motion and this appealensued.
It is well settled that where, as here, a municipality has enacted a prior written noticestatute[FN1]pertaining to its thoroughfares or sidewalks, it cannot be held liable unless such written notice ofthe allegedly defective or dangerous condition was actually given (see Smith v Village of Hancock, 25AD3d 975, 975 [2006]; Dalton vCity of Saratoga Springs, 12 AD3d 899, 900 [2004]). Here, defendant sustained itsinitial evidentiary burden by submitting the affidavit of its Deputy Commissioner of PublicWorks, who averred that a review of the relevant records revealed that no written notice of thealleged defect or unsafe condition had been received (see Dalton v City of SaratogaSprings, 12 AD3d at 900; Hendrickson v City of Kingston, 291 AD2d 709, 709[2002], appeal dismissed and lv denied 98 NY2d 662 [2002]). The burden thus shifted toplaintiffs to raise an issue of fact regarding the applicability of a recognized exception to the priorwritten notice requirement (seeFuhrmann v City of Binghamton, 31 AD3d 1036, 1037 [2006]; Pagillo v City of Oneonta, 25 AD3d1044, 1044-1045 [2006], lv denied 7 NY3d 704 [2006]). Plaintiffs asserted that priorwritten notice was obviated because defendant "created the defect or hazard through anaffirmative act of negligence" (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; see Cotch v City of Albany, 37 AD3d1012, 1013 [2007]), yet failed to proffer any evidence that the difference in height betweenthe grassy area and the abutting curb was affirmatively created by defendant, rather than theresult of natural settlement of the grass in relation to the curb over time (see Brooks v Village of Horseheads, 14AD3d 756, 757 [2005]; see alsoGalante v Village of Sea Cliff, 13 AD3d 577, 578 [2004]; Corey v Town of Huntington, 9 AD3d345, 346 [2004]).[FN2]In the absence of such proof, Supreme Court properly dismissed this cause of action (see Yarborough v City of New York,10 NY3d 726, 727-728 [2008]).
With respect to plaintiffs' claim that defendant negligently failed to adequately [*3]illuminate the park in the area of plaintiff's fall, the prior writtennotice requirement is inapplicable since Saratoga Springs City Charter § C-55 only appliesto physical conditions in or on traversable surfaces, structures or appurtenances (see Murine v City of Utica, 39 AD3d1237, 1238 [2007]; Cracas v Zisko, 204 AD2d 382, 383 [1994]; see alsoAlexander v Eldred, 63 NY2d 460, 467 [1984]; Doremus v Incorporated Vil. ofLynbrook, 18 NY2d 362, 365-366 [1966]). Therefore, our analysis is guided by the generalprinciple that "a municipality is under a duty to maintain its park . . . facilities in areasonably safe condition" (Rhabb v New York City Hous. Auth., 41 NY2d 200, 202[1976]). Here, the record reveals that there were approximately 60 overhead light fixturesscattered throughout the park, one of which was located in the vicinity of the curb where plaintifffell. Notwithstanding testimony that the fixtures were equipped with photo cells which causedthem to automatically illuminate, plaintiff, her daughter and a nonparty witness each testified thatthe lights within the park were not on at the time of plaintiff's fall. However, "[i]n order forplaintiff[s] to establish a prima facie case of defendant's negligence with respect to [the]allegation of inadequate lighting, [they] must establish that defendant had a duty to light thearea where she was injured" (Lauria v City of New Rochelle, 225 AD2d 1013, 1014[1996] [emphasis added]; see Bauer v Town of Hempstead, 143 AD2d 793, 794 [1988]).Such a duty is "limited to those situations in which illumination is necessary to avoid dangerousand potentially hazardous conditions" (Thompson v City of New York, 78 NY2d 682,684 [1991]). The slight height differential between the grass and the curb, in an area which wasnot intended to be traversed, is not the type of dangerous or hazardous situation that defendanthad a duty to illuminate (see Lee v Morris, 297 AD2d 626, 627 [2002], lv denied99 NY2d 508 [2003]; Greenberg v McLaughlin, 242 AD2d 603, 603-604 [1997];Lauria v City of New Rochelle, 225 AD2d at 1014; Abbott v County of Nassau,223 AD2d 662, 662 [1996]).
Lastly, we decline to consider plaintiffs' claim that defendant was negligent in failing toprovide adequate crowd control on the park's pathways, as this new theory of liability is basedupon facts not asserted in the notice of claim and was raised for the first time in theirsupplemental bill of particulars served more than four years after plaintiff's accident (see Mahase v Manhattan & Bronx SurfaceTr. Operating Auth., 3 AD3d 410, 411 [2004]; White v New York City Hous.Auth., 288 AD2d 150, 150 [2001]; Cippitelli v Town of Niskayuna, 203 AD2d 632,634 [1994]; see also General Municipal Law § 50-e [5], [6]).
Mercure, J.P., Rose and Kane, JJ., concur.
Malone Jr., J. (dissenting). Because I am of the view that there are questions of factconcerning plaintiffs' cause of action premised on the lack of adequate lighting in the vicinitywhere plaintiff Joyce Gagnon (hereinafter plaintiff) fell, I would deny defendant's motion forsummary judgment. It is well settled that, as a landowner, defendant has a duty to illuminatethose areas where it is necessary to avoid dangerous and potentially hazardous conditions (seeThompson v City of New York, 78 NY2d 682, 684 [1991]). In the case at hand, there wereapproximately 60 overhead light fixtures located throughout the downtown park, at least one ofwhich was near the area where plaintiff fell. There was unequivocal deposition testimony by aneyewitness that the lights had been turned off when the fireworks started, probably to facilitate abetter viewing of the fireworks. As the event drew some 8,000 people to the park, it was clearlyforeseeable that they would be scattered throughout it, walking on both the paved and grassyareas in the darkness. The pictures of the location of plaintiff's fall show a protruding concretecurb several inches high running [*4]between the grassy andpaved areas that clearly presented a tripping hazard to those walking from the grass to thepavement. Whether the protruding curb would have been observed and avoided by plaintiff ifthere had been better lighting in the vicinity is, in my view, a question of fact for a jury to resolve(see e.g. Sousie v Lansingburgh Boys & Girls Club, 291 AD2d 619 [2002]).
Ordered that the order is affirmed, without costs.
Footnote 1: Saratoga Springs City Charter§ C-55 provides, in pertinent part: "No civil action shall be maintained against the city fordamages or injuries to person or property sustained in consequence of any street . . .being out of repair, unsafe, dangerous or obstructed, . . . unless it appears thatwritten notice of the defective, unsafe, dangerous or obstructed condition . . . wasactually given to the Commissioner of Public Works and there was a failure or neglect within areasonable time after the giving of such notice to repair or remove the defect, danger orobstruction complained of."
Footnote 2: Indeed, plaintiffs alleged in theirbill of particulars that defendant constructed the subject curb and "allowed the land adjacent tothe [curb to] be developed to a point in which there was a height difference between the [curb]and the ground."