Preview
FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 11/19/2018
"3"
Exhibit
FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017
NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 11/19/2018
NoShepard's SignaFW
As of:August 3, 2018 1:54 PM Z
A__macio v. Gaudiuso
United States DistrictCourt for theEastern Districtof New York
July 7,2005, Decided
Civil Action No. CV-03-1208 (DGT) (VVP)
Reporter
2005 U.S. Dist.LEXIS 13510 *;2005 WL 1593647
that there was a material issue of fact regarding whether the
BELEN - against- VERONICA
AMACIO, Plaintiff,
city had constructive notice that the tree obstructed the stop
GAUDIUSO and ANTHONY GAUDIUSO, Defendants.
sign because R couM not be saM as a maner of law at Ge
VERONICA GAUDIUSO and ANTHONY GAUDIUSO,
obstruction of the stop sign did not exist for a sufficient
time
- against- CITY OF NEW
Third-Party Plaintiffs, YORK,
to put the city on notice; itwas clear from photographs that
Third-Party Defendant.
tree branches were covering the stop sign, but itwas notclear
how long the condition existed priorto theaccident.
Disposition: [*l] City's motion for summary judgment
dismissing third-party complaint denied.
Outcome
The city'smotion for summary judgment was denied.
Core Terms
third-
LeMens® Heahotes
stop sign,obstructed, constructive notice, inspections,
party,actual notice, intersection,municipalities,notice,
courts, vegetation,City's,cases
Case Summary
Governments > Local Governments > Claims By &
Against
Procedural Posture
Plaintiff,a driver,sued defendants, a vehicle operator and its > >
Torts > Public Entity Liability Liability General
owner, seeking to recover alleged personal injury damages
Overview
stemming from a motor vehicle accident involving the driver
and operator. The operator and owner filed a third-party > >
Transportation Law ... >Traffic Regulation Traffic
complaint against third-party defendant, a city,alleging that Control Devices > Signs
Stop
the city was partiallyor wholly liablefor the accident. The
citymoved for summary judgment. Transportation Law > Private Vehicles > Traffic
Regulation > General Overview
Overview
The operator and owner claimed thata tree plantedby the city Transportation Law > ...> Traffic Regulation > Traffic
obstructed the stop sign that the operator failed to see Control Devices > General Overview
immediately prior to theaccident. The city claimed that itdid
not have actual or constructive notice of the tree'sobstruction Irttps://advance.lexis.com/api/document?collection=cases&i
of the stop sign. The court initiallyheld thatthere was no d=urn:contentitem:4GK7-PD50-TVW3-P2RT-00000-
evidence that the cityhad actual notice prior to the accident Local
00&context-&link=LNHNREFelsecl[atu}
between the driver and the operator that tree branches were Governments, Claims & Against
By
obstructing the stop signat the intersectionwhere the accident
occurred. The court further held that the city could be held In order for a city to be found liable for an allegedly
liable based on a finding of constructive notice of the obstructed stop sign, itmust have had actual or constructive
obstructed stop sign as a matter of law. The court then held notice of the allegedly obstructed stop sign. Actual notice is
BROOKE LOMBARDI
FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017
NYSCEF DOC. NO. 120 RECEIVED NYSCEF:Page 11/19/2018
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Amacio v. Gaudiuso
notice given directly to, or received personally by, a party. Transportation Law > ... >Traffic Regulation > Traffic
Constructive notice is notice arising by presumption of law Control Devices > Signs
Stop
from the existence of factsand circumstances that a party had
a duty totake notice of. Transportation Law > Private Vehicles > Traffic
Regulation > General Overview
Transportation Law > ... >Traffic Regulation > Traffic
Governments > Local Governments > Claims By &
Control Devices > General Overview
Against
httns://advance.lexis.com/api/document?collection=cases&i
Torts > ... >Duty > Affirmative Duty to Act > Failure to
d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000
Act
00&context=&link=LNHNREFcisec4[1] Local
Gomnments, Gaims By & Against
Torts> Public Entity Liability> Liability> General
Overview
New York statecourts have differentiatedbetween the type of
notice required where overgrown vegetation allegedly caused
Torts > >
... >
Liability Claim Presentation > General
. a hazardous condition and, by contrast, the type of notice
Overview .
reqmred where stop signs are obstructed or otherwise
. . defective. Those courts have consistently held that an
https://advance.lexis.com/api/document?collection=cases&t .
obstructed stop sign is defective and, therefore, statutes
d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000-
requiring actual notice do not apply to obstructed stop signs.
00&context=&link=LNHNREFelscc2[1] Local
Itfollows thatthe New York statecourts have anticipated that
Governments, Claims By & Against
municipalities can be held liablebased on constructive notice
of obstructed stop signs.
In the presence of a municipal statute explicitlycalling for
actual notice of the conditions complained of in order to
trigger liability,constructive notice will suffice only if the
municipality has been affirmatively negligent; however, Governments > Local Governments > Claims By &
simple nonfeasance isgoverned by the statute'sactual notice Against
requirement.
Torts> Public Entity Liability> Liability> General
Overview
Goverarñênts > Local Governments > Claims By &
Transportation Law > ... >Traffic Regulation > Traffic
Against
Control Devices > Stop Signs
Torts > Public Entity > Liability> General
Liability > >
Transportation Law Private Vehicles Traffic
Overview
Regulation > General Overview
https://advance.lexis.com/api/document?collection=cases&i .
Transportation Law > ... >TrafficRegulation > Traffic
d=urn:conteüiitem:4GK7-PD50-TVW3-P2RT-00000-
Control Devices > General Overview
00&context=&link=LNHNREFelsec3[ ] Local
Governments, Claims By & Against
https://advance.lexis.com/api/dücumcst?collection=cases&i
. . d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000-
For purposes of a city's the
liability, city's simple act of
00&context=&link=LNHNREFcisec5[ ] Local
planting a growing tree isinsufficient
to establish constructive .
Governments, Claims By & Agamst
notice of thetree'salleged defect.
New York courts have not differentiatedbetween urban and
suburban areas in assessing the liabilityof a municipality for
Governments > Local Governments > Claims By & an obstructed stop sign.
Against
Torts > Public Entity > Liability> General
Liability > >
Governments Local Governments Claims By &
Overview
Against
BROOKE LOMBARDI
FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017
NYSCEF DOC. NO. 120 RECEIVED NYSCEF:Page 11/19/2018
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Amacio v.Gaudiuso
Torts > Public Entity Liability> Liability> General Opinion by: David G. Trager
Overview
Transportation Law > ... >Traffic Regulation > Traffic
Control Devices > Stop Signs
https:Hadvance.lexis.com/api/document?collectionicaseski
MEMORANDUM & ORDER
d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000-
00&context-&link=LNHNREFelscc6[ m] Local TRAGER, J.
Governmcñts, Claims By & Against
Third-Party Plaintiffs Veronica and Anthony Gaudiuse
plaintiffs"
To constitute constructive notice of an alleged defect for (collectively "third-party or "defendants
purposes of a city's a
liability, defect must be visible and Gaudiuso") brought this third-partyaction against third-party
apparent and it must existfor a sufficientlength of time prior defendant New York City (the "City"), seeking a jüdginent
to the accident to permit defendant's employees to discover thatthe City was partiallyor wholly liablefor an accidentthat
and remedy it. occurred between third-party plaintiffs[*2] and plaintiff
Belen Amacio. Following completion of discovery, the City
now moves for summary judgment dismissing the third-party
Evidence > Burdens of Proof > General Overview
Governments > Local Governments > Claims By &
Background
Against
On May 21, 2001, at about 6:05 p.m. at the intersection of
Torts > Public Entity Liability> Liability> General
lonia Avenue and Foster Road, on Staten Island,New York, a
Overview
vehicle operated by defendant Veronica Gaudiuso and owned
by Anthony Gaudiuso struck, from the side, a motor vehicle
https:Hadvance.lexis.com/ani/dociiiiisist?collection=cases&i
operated by plaintiff Belen Amacio. See Third-Party
d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000-
Complaint ("Third-Party Comp.") P6. The accident allegedly
00&context-&link=LNHNREFelscc7[1] Evidence, .
occurred when Veromca Gaudiuso did not stop ata stop sign
Burdens of Proof
located at thesouthwest corner of the intersection.See Third-
Party Comp. P8.
The plaintiff
bears the burden of proof on the issue ofwhether
a city had constructive notice of an alleged defect, for
On or about March 11, 2002, plaintiffcommenced a diversity
purposes of thecity'sliability. tort action in federal court against defendants Gaudiuso to
recover allegedpersonal injurydamages in theamount of two
Counseh For Belen Amacio, Plaintiff:Terence John
million dollars.Plaintiffs Complaint P27.
Sweeney, Law Office of Terrance J.,Sweeney, Esq., New
York, NY. Defendants Gaudiuso impleaded the City,
subsequently
alleging that at the time of the accident,a tree owned by the
For Veronica Gaudiuso, Anthony Gaudiuso, Defendants:
City ("the tree") obscured the stop sign at the mtersection
Stephen Gary Ringel,Moore & Associates, New York, NY.
where the accident occurred. See Third-Party Comp. P7.
For The City of New York, Defendant: Elizabeth Dale Gross, Defendants Gaudiuso claim that theCity's failure"to to
plant,
New York City Law Department, New York, NY· position and to maintain the tree ina manner to prevent
[*3]
For the obstruction of the stop sign from the view of operators of
Anthony Gaudiuso, Veronica Gaudiuso, ThirdParty
vehicles"
motor caused the accident in whole or in part.
Plaintiffs:Stephen Gary Ringel, Moore & Associates, New
Third-Party Comp. P8. Moreover, defendants Gaudiuso allege
York, NY.
that "the damages thatplaintiffsustained were caused solely
For City Of New York, ThirdParty Defendant: Elizabeth Dale third-
by the negligence, carelessness and recklessness of the
Gross, New York City Law Department, New York, NY. defendants."
party Third-Party Comp. Pl 1.
For The City of New York, Cross Defendant: Elizabeth Dale
Gross, New York City Law Department, New York, NY.
Discussion
Judges: David G. Trager, United States DistrictJudge.
BROOKE LOMBARDI
FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017
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Amacio v. Gaudiuso
https://advance.lexis.comeivi/document?collection=cases&i Precinct's Traffic Intelligence Reports ("TIR"), there is no
d=urn:contentItem:4GK7-D¶50-TVW3-P2RT-00000- record of road or sidewalk condition at the intersection
any
00&context-&link=ctsecl[ ] In order for the City to be prior to or on May 21, 2001. See Sept. 7, 2004 Aff. of Daniel
found liable,itmust have had actual or constructive notice of Byrnes, NYPD Sergeant, PP7, 8.a,8.b,8.c.
the allegedly obstructed stop sign.Brownv. City ofNew York,
154 A.D.2d 545 N.Y.S.2d 801 (2d Dept. Finally, Commüñity Board Three of the Borough of Staten
325, 326, 1989)
claims against where there was no evidence Island ("Community Board Three") received no compkirts of
(dismissing city
the had actual or constructive notice of a any kind about an obstruction at the intersectionprior to the
City missing stop
Brandt v. New 86 A.D.2d 446 May 21, 2001 accident at issue. See August 25, 2004
sign); City of York, 574,
N.Y.S.2d 303 (1stDept. claims against Affidavit [*6] of Marie Bodnar, District Manager of
1982) (dismissing city
where there was no evidence the had actual or Community Board Three, P3.
City
constructive notice of a bentand twisted stop sign facing in .
. . . The evidence establishes that the City did not have actual
the wrong direction).Actual notice is"notice given directly
party." notice prior to the May 21, 2001 accident that the tree's
to,or received personally by, a Blacks Law Dictionary .
branches were obstructing the stop sign at the mtersection of
1090 (8thed. 2004). Constructive notice is"notice arisingby .
Foster Road and Ioma Avenue.
presumption of law [*4] from the existence of facts and
of."
circumstances that a partyhad a duty to take notice Id
(2)
(1)
There stillremains the legal issue whether the City can be
held liable based on constructive notice of the alleged
Here, there isno evidence that theCity received actual notice
obstruction of the stop sign prior to the accident. The City
of the allegedlyobstructed stop sign priorto theaccident. The
argues that under Monteleone v. Incorporated Village of
Department of Transportation ("DOT") is responsible for
Floral Park, 74 N.Y.2d 917, 549 N.E.2d 459, 550 N.Y.S.2d
monitoring the maintenance of any trees owned by the City. It
257 (1989), and Zizzo v. New York,__1_76A.D.2d 722,_25
was DOT's practice and procedure before and on May 21,
N.Y.S.2d 966, more than constructive notice is required,and
2001, the date of the accident, not to inspect stop signs for
the City cannot be found liableunless itreceived actual notice
obstructions without firstreceiving a complaint or a request.
of the obstructed stop sign because the obstruction occurred
A review of DOT's records establishes that it received no
by virtue of the City's simple nonfeasance. Monteleone, 74
complaints or any other communications concerning a treeor
N.Y.2d at 917, 550 N.Y.S.2d at 257 (finding actual notice
a tree's branches obstructing a stop sign at the southwest
necessary where plaintiffwas struck inthe eye by a low lying
corner of the intersection where the accident occurred. In
tree branch overhanging sidewalk); ZizzgJZ6AD.2d at 722
addition, DOT has no record that any DOT trafficcontrol
inspector observed or inspected the obstruction of the stop
4Z5 N. SM at 966..L2d..Dept. 1991) (finding actual notice
necessary where plaintiff[*7] suffered injuries when he
sign during the course of hisdaily work. Sept. 2,2004 Aff. of
tripped on overgrown roots of a city-owned tree).However,
Michael Harnett, DOT's Chief Borough Engineer, PP8, 1 1,
these cases are inapplicable because they involved the
12.
application of specificmunicipal statutesexplicitlycalling for
The New York City Department of Parks and Recreation actual notice of the conditions complained of in order to
("Parks Department") isresponsible for the actual grooming trigger liability.
of city-owned trees. The Parks Department's procedure https://advance.lexis.com/api/document?collection=cases&i
requires that itreceive [*5] eitheran oral or written request d=urn:contentItem:4GK7-PD50-TVW3-P2RT 00000
for inspection from any person or entity, including another 00&context=&link=ctsec2[Ÿ] In the presence of such a
City agency, with a concern about a city street tree before statute,constructive notice would have sufficed only if the
conducting an inspection of any city-owned trees.In thiscase, municipality had been affirmatively negligent; however,
likethe DOT, the Parks Department, according to itsrecords, simple nonfeasance, for instance, failing to prune the trees
never received any complaints or requests for an inspection of that caused the injuries,were governed by the statute'sactual
any of the city-ownedtrees atthisparticular intersection. notice requirement. Monteleone, 74 N.Y.2d at 919, 550
N.Y.S.2d at 257; Zizzo, 176 A.D2d at_Z23,_475 N.YS.2d at
Furthermore, the New York City Police Department 966. As plaintiff
(and contend
third-party plaintiffs) correctly,
("NYPD") did not receive any complaint from the general the does not have a specific statute actual
City requiring
public or a fellow city agency or make any report of an notice under these circumstances constructive
and, therefore,
obstructed stop sign at the intersection where the accident notice is all
that plaintiff
need establish.
occurred. Moreover, there isno record of any accident at this
intersection prior to May 21, 2001. According to the 123 To meet the requirement that the City have constructive
BROOKELOMBARDI
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Amacio v. Gaudiuso
notice the plaintifffirstcontends that from the time the City on nonfeasance sufficedto trigger a municipality's in
liability
plants a tree,the City isable to foreseethat thetree will grow cases involving obstructed or otherwise defectivestop signs.
and that itsbranches will spread. Thus, the City should be
to obstruction in The City argues thatthe constructive notice standard applied
deemed have constructive [*8] notice of an
these types of because the vegetation has existed for a to othermunicipalities should not apply to theCity because of
cases
of time and to the unique problems facing a cityas large as New York. In
sufficiently-long period as tobe "open obvious
eye." DiSanto v. Town of islip,Torres v. Galvin and Finn v. Town
anyone with an observant and seeking Pl. Belen
Amacio's Mem. of Law in Opp. to Def. of New York's of Southampton, the courts denied the defendant towns
City
of trees summary judgment on the basis that there were material
Mot. for Summ. J.at 5. Considering the wide variety
which each type issues of fact as to whether each had constructive notice of
planted by the City, the various rates at
and their thisargument makes little vegetation obstructing stop signs merely by virtue of the fact
grows disparatelocations,
the predict that the defendant towns owned the trees. DiSanto,_212
sense. As a practicalmatter, City cannot possibly
AD·2 -ªL59R_.622 N.Y.S.2d at 313; Torres,_189 A.D.2d at
which trees willgrow in a certainway so as to impede traffic.
https://advance.lexis.com/api/dociitiiéiit?collection=cases&i ElÛ>29 32d at 288; Finn K l'gwn pLSquthampton,_289
d=urn:conten:1tem:4GK7-PD50-TVW3-P2RT-00000- A.D.2d 285,_734 N.Y.S.2d 215 (2d.Dep_t._2.001). The City
The City's simple act of argues that these cases are distinguishable from the present
00&context=&link=cisec3[Ÿ]
a growing isinsufficientto establishconstructive case because the defendants were relatively small
planting tree
notice as indicated Monteleone and Zizzo. municipalities. DiSanto 212 A.D.2d aL500,_622_N.Y&2d at
by
313; Torres, 189 A.D.2d at 870, 592 N.Y.S.2d at
But this case is not about a hazardous condition 788; [*11] F_inn,289 A.D.2d at 285, 734 N.Y.S.2d at 215. In
merely
created an overgrown tree. the present matter, the City asserts ithas thousands of stop
by
https://advance.lexis.com/api/document?collection=cases&i signs, hundreds of thousands of street trees, a large
d=urn:contentItem:4GK7-PD50-TVW3-P2RT 00000- geographic area and a limited number of employees to inspect
New York state courts stop signs for obstructions. However, regardless of the
00&context=&link=cisec4[Ÿ]
differentiate between the type of notice required where feasability of regular inspections in cities, the
overgrown vegetation caused a hazardous condition https://advance.lexis.com/api/document?cc||ection=cases&i
allegedly
the type of notice required where signs d=urn:cositerititéite:4GK7-PD50-TVW3-P2RT 00000
and, by contrast, stop
are obstructed or otherwise defective. Those courts have 00&context-&link=clscc5[T] New York courts have not
held that an obstructed sign isdefective differentiated between urban and suburban areas in assessing
consistently stop and,
statutes actual notice do not to the of
liability a municipality for an obstructed stop sign.See,
therefore, requiring apply
obstructed signs. See, e.g.,DiSanto v. Town offslip, e.g.,Dishaw v. Cent. N.Y. Reg'l. Transp. Auth. (CENTRO),
stop [*9]
212 A.D.2d 500,_6-22_N.Y&2d_313.31412d 179 A.D.2d 1088, 579 N.Y.S.2d 530 (4thDept. 1992) (finding
Dept.__1995);
Tarres_v._Gglyinal89 AR2d 870,_87L)92 N Y S.2d 78812d that actualnotice of obstructed stop sign not necessary in case
("The prior written notice laws should be against the City of Syracuse).
D_ep_tJ_993) strictly
construed and refer'tophysical conditions in the streets and
Despite thiscase law, the City claims that,as a matter of law,
sidewalks . . . which
do not immediately come to theattention
itdid not have constructive notice of the obstructed stop sign
of the Village officers unless they are given actual notice
thereof' because itsagencies cannot possibly inspect allthe stop signs
. . . andthatthey do not apply to claims of defective
signs." in the City for possible obstructions by trees. Both DOT and
stop (internal citationsomitted)). Itfollows that the
the Parks Department assert that the City would be greatly
New York state courtsanticipated that municipalities can be
burdened were itrequired to make regularinspections of more
held liablebased on constructive notice of obstructed stop
than six thousand stop signs on Staten Island. Such a policy
signs.
would require the relevant departments [*12] to diverttheir
the distinction drawn the New York cases limited resources and personnel from other, more important
Moreover, by
between notice required for overgrown vegetation and tasks for these regular inspections. A more sensible policy,
defective signs makes practicalsense. The six thousand the City contends, isthe one thatwas in effectat thetime of
stop
signs on Staten Island have knowable and the accident, whereby the DOT and the Parks department
stop fixed,
while treesand other vegetation are ina perform their respective inspections only after receiving
unchanging locations,
constant state of flux. Although regular inspections of trees complaints or requests.
may be impractical and even futile,inspections of stop signs
and theirimmediate surroundings is both feasible and likely '
Although DOT's inspectorswilltend toovergrowth and othersuch
to be productive. For this reason, [*l0] the above citedNew
courts' situationsifhappened upon during theirdailytasks, DOT has no
York opinions finding that constructive notice based
record thata DOT trame control inspectorobserved and inspected
BROOKE LOMBARDI
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Amacio v. Gaudiuso
Moreover, the City argues, neither can the NYPD or dismissing the third-partycomplaint is denied.
Community Board Three conduct inspections of allthe stop
signs inNew York and/or on Staten 1sland.Quite Dated: Brooklyn, New York
City simply,
the NYPD's concern is law enforcement, while Community
July 7,2005
Board Three addresses community issues and the
coordination of municipal services. Furthermore, as noted
SO ORDERED:
above, before the accident [*l3] in question occurred, no
accident had previously occurred at the intersection. All of /s/
these arguments, which no doubt have much force to them,
have not been adopted the New York courts. David G. Trager
however, by
United States DistrictJudge
(3)
Having resolved that nonfeasance constructive notice is
sufficient,plaintiff(and third-party plaintiffs)claim that their End of Dücüiiiciit
constructive notice argument is bolstered by the size of the
tree and density of the branches obstructing the stop sign,
which they citeas evidence that thecondition had existed for
a substantial time before the accident occurred.
https://advance.lexis.com/api/document?collection=cases&i
d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000-
00&context=&link=ctsec6[Ÿ] "To constitute constructive
notice, a defectmust be visible and apparent and itmust exist
for a sufficientlength of time prior tothe accident topermit
it."
defendant's employees to discover and remedy Gordon v.
Am. Museum of Natural History, 67 N.Y.2d 836, 837, 492
N.E.2d 774, 501 N.YS.2d 646 (1986). Upon inspection of the
photograph of thetree and obstructed stop sign,itisclear that
the branches are covering the stop sign,but itisnot clear how
long the condition existed. See Pl.'sEx. 3 (photograph of
intersection). One way to determine when the obstruction
began would be to look at what type of tree itis, [*l4] but
the record does not disclose this fact. Although
https://advance.lexis.com/ani/document?collection=cases&i
d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000-
context-&link=ctsec7[Ÿ] plaintiffbears the burden of
proof on this issue,since the partieshave focused on the legal
issues and not on the factual issue, itis appropriate that this
issue be resolved at trialbecause itcannot be said as a matter
of law that the obstruction of the stop sign did not existfor a
sufficienttime to put the City on notice. As such, there is a
material issue offact regarding how long the situationexisted
and whether the City, therefore, should be found to have
constructive notice of thepotentially dangerous condition.
Conclusion
Because there is a materialissue offact regarding whether the
City had constructive notice that a tree obstructed the stop
sign in question, the City's motion for summary judgment
the obstructionofthe stopsign during thecourse of hisdaily work
duringthe time periodofMay 21, 1996through May 21,2001.
BROOKELOMBARDI
Preview
FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 11/19/2018 "3" Exhibit FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 11/19/2018 NoShepard's SignaFW As of:August 3, 2018 1:54 PM Z A__macio v. Gaudiuso United States DistrictCourt for theEastern Districtof New York July 7,2005, Decided Civil Action No. CV-03-1208 (DGT) (VVP) Reporter 2005 U.S. Dist.LEXIS 13510 *;2005 WL 1593647 that there was a material issue of fact regarding whether the BELEN - against- VERONICA AMACIO, Plaintiff, city had constructive notice that the tree obstructed the stop GAUDIUSO and ANTHONY GAUDIUSO, Defendants. sign because R couM not be saM as a maner of law at Ge VERONICA GAUDIUSO and ANTHONY GAUDIUSO, obstruction of the stop sign did not exist for a sufficient time - against- CITY OF NEW Third-Party Plaintiffs, YORK, to put the city on notice; itwas clear from photographs that Third-Party Defendant. tree branches were covering the stop sign, but itwas notclear how long the condition existed priorto theaccident. Disposition: [*l] City's motion for summary judgment dismissing third-party complaint denied. Outcome The city'smotion for summary judgment was denied. Core Terms third- LeMens® Heahotes stop sign,obstructed, constructive notice, inspections, party,actual notice, intersection,municipalities,notice, courts, vegetation,City's,cases Case Summary Governments > Local Governments > Claims By & Against Procedural Posture Plaintiff,a driver,sued defendants, a vehicle operator and its > > Torts > Public Entity Liability Liability General owner, seeking to recover alleged personal injury damages Overview stemming from a motor vehicle accident involving the driver and operator. The operator and owner filed a third-party > > Transportation Law ... >Traffic Regulation Traffic complaint against third-party defendant, a city,alleging that Control Devices > Signs Stop the city was partiallyor wholly liablefor the accident. The citymoved for summary judgment. Transportation Law > Private Vehicles > Traffic Regulation > General Overview Overview The operator and owner claimed thata tree plantedby the city Transportation Law > ...> Traffic Regulation > Traffic obstructed the stop sign that the operator failed to see Control Devices > General Overview immediately prior to theaccident. The city claimed that itdid not have actual or constructive notice of the tree'sobstruction Irttps://advance.lexis.com/api/document?collection=cases&i of the stop sign. The court initiallyheld thatthere was no d=urn:contentitem:4GK7-PD50-TVW3-P2RT-00000- evidence that the cityhad actual notice prior to the accident Local 00&context-&link=LNHNREFelsecl[atu} between the driver and the operator that tree branches were Governments, Claims & Against By obstructing the stop signat the intersectionwhere the accident occurred. The court further held that the city could be held In order for a city to be found liable for an allegedly liable based on a finding of constructive notice of the obstructed stop sign, itmust have had actual or constructive obstructed stop sign as a matter of law. The court then held notice of the allegedly obstructed stop sign. Actual notice is BROOKE LOMBARDI FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF:Page 11/19/2018 2 of 6 Amacio v. Gaudiuso notice given directly to, or received personally by, a party. Transportation Law > ... >Traffic Regulation > Traffic Constructive notice is notice arising by presumption of law Control Devices > Signs Stop from the existence of factsand circumstances that a party had a duty totake notice of. Transportation Law > Private Vehicles > Traffic Regulation > General Overview Transportation Law > ... >Traffic Regulation > Traffic Governments > Local Governments > Claims By & Control Devices > General Overview Against httns://advance.lexis.com/api/document?collection=cases&i Torts > ... >Duty > Affirmative Duty to Act > Failure to d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000 Act 00&context=&link=LNHNREFcisec4[1] Local Gomnments, Gaims By & Against Torts> Public Entity Liability> Liability> General Overview New York statecourts have differentiatedbetween the type of notice required where overgrown vegetation allegedly caused Torts > > ... > Liability Claim Presentation > General . a hazardous condition and, by contrast, the type of notice Overview . reqmred where stop signs are obstructed or otherwise . . defective. Those courts have consistently held that an https://advance.lexis.com/api/document?collection=cases&t . obstructed stop sign is defective and, therefore, statutes d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000- requiring actual notice do not apply to obstructed stop signs. 00&context=&link=LNHNREFelscc2[1] Local Itfollows thatthe New York statecourts have anticipated that Governments, Claims By & Against municipalities can be held liablebased on constructive notice of obstructed stop signs. In the presence of a municipal statute explicitlycalling for actual notice of the conditions complained of in order to trigger liability,constructive notice will suffice only if the municipality has been affirmatively negligent; however, Governments > Local Governments > Claims By & simple nonfeasance isgoverned by the statute'sactual notice Against requirement. Torts> Public Entity Liability> Liability> General Overview Goverarñênts > Local Governments > Claims By & Transportation Law > ... >Traffic Regulation > Traffic Against Control Devices > Stop Signs Torts > Public Entity > Liability> General Liability > > Transportation Law Private Vehicles Traffic Overview Regulation > General Overview https://advance.lexis.com/api/document?collection=cases&i . Transportation Law > ... >TrafficRegulation > Traffic d=urn:conteüiitem:4GK7-PD50-TVW3-P2RT-00000- Control Devices > General Overview 00&context=&link=LNHNREFelsec3[ ] Local Governments, Claims By & Against https://advance.lexis.com/api/dücumcst?collection=cases&i . . d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000- For purposes of a city's the liability, city's simple act of 00&context=&link=LNHNREFcisec5[ ] Local planting a growing tree isinsufficient to establish constructive . Governments, Claims By & Agamst notice of thetree'salleged defect. New York courts have not differentiatedbetween urban and suburban areas in assessing the liabilityof a municipality for Governments > Local Governments > Claims By & an obstructed stop sign. Against Torts > Public Entity > Liability> General Liability > > Governments Local Governments Claims By & Overview Against BROOKE LOMBARDI FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF:Page 11/19/2018 3 of6 Amacio v.Gaudiuso Torts > Public Entity Liability> Liability> General Opinion by: David G. Trager Overview Transportation Law > ... >Traffic Regulation > Traffic Control Devices > Stop Signs https:Hadvance.lexis.com/api/document?collectionicaseski MEMORANDUM & ORDER d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000- 00&context-&link=LNHNREFelscc6[ m] Local TRAGER, J. Governmcñts, Claims By & Against Third-Party Plaintiffs Veronica and Anthony Gaudiuse plaintiffs" To constitute constructive notice of an alleged defect for (collectively "third-party or "defendants purposes of a city's a liability, defect must be visible and Gaudiuso") brought this third-partyaction against third-party apparent and it must existfor a sufficientlength of time prior defendant New York City (the "City"), seeking a jüdginent to the accident to permit defendant's employees to discover thatthe City was partiallyor wholly liablefor an accidentthat and remedy it. occurred between third-party plaintiffs[*2] and plaintiff Belen Amacio. Following completion of discovery, the City now moves for summary judgment dismissing the third-party Evidence > Burdens of Proof > General Overview Governments > Local Governments > Claims By & Background Against On May 21, 2001, at about 6:05 p.m. at the intersection of Torts > Public Entity Liability> Liability> General lonia Avenue and Foster Road, on Staten Island,New York, a Overview vehicle operated by defendant Veronica Gaudiuso and owned by Anthony Gaudiuso struck, from the side, a motor vehicle https:Hadvance.lexis.com/ani/dociiiiisist?collection=cases&i operated by plaintiff Belen Amacio. See Third-Party d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000- Complaint ("Third-Party Comp.") P6. The accident allegedly 00&context-&link=LNHNREFelscc7[1] Evidence, . occurred when Veromca Gaudiuso did not stop ata stop sign Burdens of Proof located at thesouthwest corner of the intersection.See Third- Party Comp. P8. The plaintiff bears the burden of proof on the issue ofwhether a city had constructive notice of an alleged defect, for On or about March 11, 2002, plaintiffcommenced a diversity purposes of thecity'sliability. tort action in federal court against defendants Gaudiuso to recover allegedpersonal injurydamages in theamount of two Counseh For Belen Amacio, Plaintiff:Terence John million dollars.Plaintiffs Complaint P27. Sweeney, Law Office of Terrance J.,Sweeney, Esq., New York, NY. Defendants Gaudiuso impleaded the City, subsequently alleging that at the time of the accident,a tree owned by the For Veronica Gaudiuso, Anthony Gaudiuso, Defendants: City ("the tree") obscured the stop sign at the mtersection Stephen Gary Ringel,Moore & Associates, New York, NY. where the accident occurred. See Third-Party Comp. P7. For The City of New York, Defendant: Elizabeth Dale Gross, Defendants Gaudiuso claim that theCity's failure"to to plant, New York City Law Department, New York, NY· position and to maintain the tree ina manner to prevent [*3] For the obstruction of the stop sign from the view of operators of Anthony Gaudiuso, Veronica Gaudiuso, ThirdParty vehicles" motor caused the accident in whole or in part. Plaintiffs:Stephen Gary Ringel, Moore & Associates, New Third-Party Comp. P8. Moreover, defendants Gaudiuso allege York, NY. that "the damages thatplaintiffsustained were caused solely For City Of New York, ThirdParty Defendant: Elizabeth Dale third- by the negligence, carelessness and recklessness of the Gross, New York City Law Department, New York, NY. defendants." party Third-Party Comp. Pl 1. For The City of New York, Cross Defendant: Elizabeth Dale Gross, New York City Law Department, New York, NY. Discussion Judges: David G. Trager, United States DistrictJudge. BROOKE LOMBARDI FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF:Page 11/19/2018 4 of 6 Amacio v. Gaudiuso https://advance.lexis.comeivi/document?collection=cases&i Precinct's Traffic Intelligence Reports ("TIR"), there is no d=urn:contentItem:4GK7-D¶50-TVW3-P2RT-00000- record of road or sidewalk condition at the intersection any 00&context-&link=ctsecl[ ] In order for the City to be prior to or on May 21, 2001. See Sept. 7, 2004 Aff. of Daniel found liable,itmust have had actual or constructive notice of Byrnes, NYPD Sergeant, PP7, 8.a,8.b,8.c. the allegedly obstructed stop sign.Brownv. City ofNew York, 154 A.D.2d 545 N.Y.S.2d 801 (2d Dept. Finally, Commüñity Board Three of the Borough of Staten 325, 326, 1989) claims against where there was no evidence Island ("Community Board Three") received no compkirts of (dismissing city the had actual or constructive notice of a any kind about an obstruction at the intersectionprior to the City missing stop Brandt v. New 86 A.D.2d 446 May 21, 2001 accident at issue. See August 25, 2004 sign); City of York, 574, N.Y.S.2d 303 (1stDept. claims against Affidavit [*6] of Marie Bodnar, District Manager of 1982) (dismissing city where there was no evidence the had actual or Community Board Three, P3. City constructive notice of a bentand twisted stop sign facing in . . . . The evidence establishes that the City did not have actual the wrong direction).Actual notice is"notice given directly party." notice prior to the May 21, 2001 accident that the tree's to,or received personally by, a Blacks Law Dictionary . branches were obstructing the stop sign at the mtersection of 1090 (8thed. 2004). Constructive notice is"notice arisingby . Foster Road and Ioma Avenue. presumption of law [*4] from the existence of facts and of." circumstances that a partyhad a duty to take notice Id (2) (1) There stillremains the legal issue whether the City can be held liable based on constructive notice of the alleged Here, there isno evidence that theCity received actual notice obstruction of the stop sign prior to the accident. The City of the allegedlyobstructed stop sign priorto theaccident. The argues that under Monteleone v. Incorporated Village of Department of Transportation ("DOT") is responsible for Floral Park, 74 N.Y.2d 917, 549 N.E.2d 459, 550 N.Y.S.2d monitoring the maintenance of any trees owned by the City. It 257 (1989), and Zizzo v. New York,__1_76A.D.2d 722,_25 was DOT's practice and procedure before and on May 21, N.Y.S.2d 966, more than constructive notice is required,and 2001, the date of the accident, not to inspect stop signs for the City cannot be found liableunless itreceived actual notice obstructions without firstreceiving a complaint or a request. of the obstructed stop sign because the obstruction occurred A review of DOT's records establishes that it received no by virtue of the City's simple nonfeasance. Monteleone, 74 complaints or any other communications concerning a treeor N.Y.2d at 917, 550 N.Y.S.2d at 257 (finding actual notice a tree's branches obstructing a stop sign at the southwest necessary where plaintiffwas struck inthe eye by a low lying corner of the intersection where the accident occurred. In tree branch overhanging sidewalk); ZizzgJZ6AD.2d at 722 addition, DOT has no record that any DOT trafficcontrol inspector observed or inspected the obstruction of the stop 4Z5 N. SM at 966..L2d..Dept. 1991) (finding actual notice necessary where plaintiff[*7] suffered injuries when he sign during the course of hisdaily work. Sept. 2,2004 Aff. of tripped on overgrown roots of a city-owned tree).However, Michael Harnett, DOT's Chief Borough Engineer, PP8, 1 1, these cases are inapplicable because they involved the 12. application of specificmunicipal statutesexplicitlycalling for The New York City Department of Parks and Recreation actual notice of the conditions complained of in order to ("Parks Department") isresponsible for the actual grooming trigger liability. of city-owned trees. The Parks Department's procedure https://advance.lexis.com/api/document?collection=cases&i requires that itreceive [*5] eitheran oral or written request d=urn:contentItem:4GK7-PD50-TVW3-P2RT 00000 for inspection from any person or entity, including another 00&context=&link=ctsec2[Ÿ] In the presence of such a City agency, with a concern about a city street tree before statute,constructive notice would have sufficed only if the conducting an inspection of any city-owned trees.In thiscase, municipality had been affirmatively negligent; however, likethe DOT, the Parks Department, according to itsrecords, simple nonfeasance, for instance, failing to prune the trees never received any complaints or requests for an inspection of that caused the injuries,were governed by the statute'sactual any of the city-ownedtrees atthisparticular intersection. notice requirement. Monteleone, 74 N.Y.2d at 919, 550 N.Y.S.2d at 257; Zizzo, 176 A.D2d at_Z23,_475 N.YS.2d at Furthermore, the New York City Police Department 966. As plaintiff (and contend third-party plaintiffs) correctly, ("NYPD") did not receive any complaint from the general the does not have a specific statute actual City requiring public or a fellow city agency or make any report of an notice under these circumstances constructive and, therefore, obstructed stop sign at the intersection where the accident notice is all that plaintiff need establish. occurred. Moreover, there isno record of any accident at this intersection prior to May 21, 2001. According to the 123 To meet the requirement that the City have constructive BROOKELOMBARDI FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF:Page 11/19/2018 5 of 6 Amacio v. Gaudiuso notice the plaintifffirstcontends that from the time the City on nonfeasance sufficedto trigger a municipality's in liability plants a tree,the City isable to foreseethat thetree will grow cases involving obstructed or otherwise defectivestop signs. and that itsbranches will spread. Thus, the City should be to obstruction in The City argues thatthe constructive notice standard applied deemed have constructive [*8] notice of an these types of because the vegetation has existed for a to othermunicipalities should not apply to theCity because of cases of time and to the unique problems facing a cityas large as New York. In sufficiently-long period as tobe "open obvious eye." DiSanto v. Town of islip,Torres v. Galvin and Finn v. Town anyone with an observant and seeking Pl. Belen Amacio's Mem. of Law in Opp. to Def. of New York's of Southampton, the courts denied the defendant towns City of trees summary judgment on the basis that there were material Mot. for Summ. J.at 5. Considering the wide variety which each type issues of fact as to whether each had constructive notice of planted by the City, the various rates at and their thisargument makes little vegetation obstructing stop signs merely by virtue of the fact grows disparatelocations, the predict that the defendant towns owned the trees. DiSanto,_212 sense. As a practicalmatter, City cannot possibly AD·2 -ªL59R_.622 N.Y.S.2d at 313; Torres,_189 A.D.2d at which trees willgrow in a certainway so as to impede traffic. https://advance.lexis.com/api/dociitiiéiit?collection=cases&i ElÛ>29 32d at 288; Finn K l'gwn pLSquthampton,_289 d=urn:conten:1tem:4GK7-PD50-TVW3-P2RT-00000- A.D.2d 285,_734 N.Y.S.2d 215 (2d.Dep_t._2.001). The City The City's simple act of argues that these cases are distinguishable from the present 00&context=&link=cisec3[Ÿ] a growing isinsufficientto establishconstructive case because the defendants were relatively small planting tree notice as indicated Monteleone and Zizzo. municipalities. DiSanto 212 A.D.2d aL500,_622_N.Y&2d at by 313; Torres, 189 A.D.2d at 870, 592 N.Y.S.2d at But this case is not about a hazardous condition 788; [*11] F_inn,289 A.D.2d at 285, 734 N.Y.S.2d at 215. In merely created an overgrown tree. the present matter, the City asserts ithas thousands of stop by https://advance.lexis.com/api/document?collection=cases&i signs, hundreds of thousands of street trees, a large d=urn:contentItem:4GK7-PD50-TVW3-P2RT 00000- geographic area and a limited number of employees to inspect New York state courts stop signs for obstructions. However, regardless of the 00&context=&link=cisec4[Ÿ] differentiate between the type of notice required where feasability of regular inspections in cities, the overgrown vegetation caused a hazardous condition https://advance.lexis.com/api/document?cc||ection=cases&i allegedly the type of notice required where signs d=urn:cositerititéite:4GK7-PD50-TVW3-P2RT 00000 and, by contrast, stop are obstructed or otherwise defective. Those courts have 00&context-&link=clscc5[T] New York courts have not held that an obstructed sign isdefective differentiated between urban and suburban areas in assessing consistently stop and, statutes actual notice do not to the of liability a municipality for an obstructed stop sign.See, therefore, requiring apply obstructed signs. See, e.g.,DiSanto v. Town offslip, e.g.,Dishaw v. Cent. N.Y. Reg'l. Transp. Auth. (CENTRO), stop [*9] 212 A.D.2d 500,_6-22_N.Y&2d_313.31412d 179 A.D.2d 1088, 579 N.Y.S.2d 530 (4thDept. 1992) (finding Dept.__1995); Tarres_v._Gglyinal89 AR2d 870,_87L)92 N Y S.2d 78812d that actualnotice of obstructed stop sign not necessary in case ("The prior written notice laws should be against the City of Syracuse). D_ep_tJ_993) strictly construed and refer'tophysical conditions in the streets and Despite thiscase law, the City claims that,as a matter of law, sidewalks . . . which do not immediately come to theattention itdid not have constructive notice of the obstructed stop sign of the Village officers unless they are given actual notice thereof' because itsagencies cannot possibly inspect allthe stop signs . . . andthatthey do not apply to claims of defective signs." in the City for possible obstructions by trees. Both DOT and stop (internal citationsomitted)). Itfollows that the the Parks Department assert that the City would be greatly New York state courtsanticipated that municipalities can be burdened were itrequired to make regularinspections of more held liablebased on constructive notice of obstructed stop than six thousand stop signs on Staten Island. Such a policy signs. would require the relevant departments [*12] to diverttheir the distinction drawn the New York cases limited resources and personnel from other, more important Moreover, by between notice required for overgrown vegetation and tasks for these regular inspections. A more sensible policy, defective signs makes practicalsense. The six thousand the City contends, isthe one thatwas in effectat thetime of stop signs on Staten Island have knowable and the accident, whereby the DOT and the Parks department stop fixed, while treesand other vegetation are ina perform their respective inspections only after receiving unchanging locations, constant state of flux. Although regular inspections of trees complaints or requests. may be impractical and even futile,inspections of stop signs and theirimmediate surroundings is both feasible and likely ' Although DOT's inspectorswilltend toovergrowth and othersuch to be productive. For this reason, [*l0] the above citedNew courts' situationsifhappened upon during theirdailytasks, DOT has no York opinions finding that constructive notice based record thata DOT trame control inspectorobserved and inspected BROOKE LOMBARDI FILED: KINGS COUNTY CLERK 11/19/2018 05:55 PM INDEX NO. 503889/2017 NYSCEF DOC. NO. 120 RECEIVED NYSCEF:Page 11/19/2018 6 of6 Amacio v. Gaudiuso Moreover, the City argues, neither can the NYPD or dismissing the third-partycomplaint is denied. Community Board Three conduct inspections of allthe stop signs inNew York and/or on Staten 1sland.Quite Dated: Brooklyn, New York City simply, the NYPD's concern is law enforcement, while Community July 7,2005 Board Three addresses community issues and the coordination of municipal services. Furthermore, as noted SO ORDERED: above, before the accident [*l3] in question occurred, no accident had previously occurred at the intersection. All of /s/ these arguments, which no doubt have much force to them, have not been adopted the New York courts. David G. Trager however, by United States DistrictJudge (3) Having resolved that nonfeasance constructive notice is sufficient,plaintiff(and third-party plaintiffs)claim that their End of Dücüiiiciit constructive notice argument is bolstered by the size of the tree and density of the branches obstructing the stop sign, which they citeas evidence that thecondition had existed for a substantial time before the accident occurred. https://advance.lexis.com/api/document?collection=cases&i d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000- 00&context=&link=ctsec6[Ÿ] "To constitute constructive notice, a defectmust be visible and apparent and itmust exist for a sufficientlength of time prior tothe accident topermit it." defendant's employees to discover and remedy Gordon v. Am. Museum of Natural History, 67 N.Y.2d 836, 837, 492 N.E.2d 774, 501 N.YS.2d 646 (1986). Upon inspection of the photograph of thetree and obstructed stop sign,itisclear that the branches are covering the stop sign,but itisnot clear how long the condition existed. See Pl.'sEx. 3 (photograph of intersection). One way to determine when the obstruction began would be to look at what type of tree itis, [*l4] but the record does not disclose this fact. Although https://advance.lexis.com/ani/document?collection=cases&i d=urn:contentItem:4GK7-PD50-TVW3-P2RT-00000- context-&link=ctsec7[Ÿ] plaintiffbears the burden of proof on this issue,since the partieshave focused on the legal issues and not on the factual issue, itis appropriate that this issue be resolved at trialbecause itcannot be said as a matter of law that the obstruction of the stop sign did not existfor a sufficienttime to put the City on notice. As such, there is a material issue offact regarding how long the situationexisted and whether the City, therefore, should be found to have constructive notice of thepotentially dangerous condition. Conclusion Because there is a materialissue offact regarding whether the City had constructive notice that a tree obstructed the stop sign in question, the City's motion for summary judgment the obstructionofthe stopsign during thecourse of hisdaily work duringthe time periodofMay 21, 1996through May 21,2001. BROOKELOMBARDI