Preview
FILED: WESTCHESTER COUNTY CLERK 05/04/2017 10:29 AM INDEX NO. 62398/2015
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 05/04/2017
To commence the statutory time
period for appeals as of right
(CPLR 5513 [aJ), you are advised
to serve a copy of this order, with
notice of entry, upon allparties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PRESENT: HON. WILLIAM J. GIACOMO, J.S.C.
____________________________ -- -c- - - - -- - - - X
JOANN M. McLAUGHLIN,
Plaintiff,
Index No. 62398/2015
- against-
DECISION & ORDER
CHAPPAQUA CENTRAL SCHOOL DISTRICT,
Defendant.
___- --- ---- -- - --- -- -- --- --- --- --- -- --- --- x
In this action to recover damages for personal injuries, defendant moves for
summary judgment, pursuant to CPLR 3212, dismissing the complaint:
Papers Considered
1. Notice of Motion/Affirmation of Lauren J. Demase,
Esq.lExhibits A-J;
2. Affirmation of Michael L. Taub, Esq. in Opposition/Exhibits
A-G/Affidavit of Joann M. McLaughlin/Exhibit AlAffidavit of
Steven Roberts/Exhibit A-B;
3. Reply Affirmation of Lauren J. Demase, Esq.
Factual and Procedural Background
Plaintiff commenced this action against defendant Chappaqua Central School
District to recover damages for personal injuries sustained on January 22, 2015. On that
date, plaintiff fell on ice while walking on an unpaved grassy area between the paved
sidewalk and a curb at the Seven Bridges Middle School in Chappaqua. At the time
plaintiff was working as a bus driver and road test examiner for non-party Chappaqua
Transportation.
Defendant moves for summary judgment dismissing the complaint on the grounds
that it did not have a duty to remove snow and ice from the grassy area, which was not
an intended walkway. Defendant also argues that even if it owed plaintiff a duty, plaintiff's
conduct was the sole-proximate cause of the accident and itdid not have actual or
constructive notice of the icy condition.
1 of 3
FILED: WESTCHESTER COUNTY CLERK 05/04/2017 10:29 AM INDEX NO. 62398/2015
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 05/04/2017
McLaughlin v. Chappaqua Central School District,Index No. 62398/2015
Defendant submitted plaintiffs deposition testimony wherein she testified that after
she exited the school bus she stepped onto the sidewalk and was on her way to meet a
coworker who had agreed to drive her back to the bus yard. Plaintiff exited the bus and
walked approximately one-hundred feet on the sidewalk, which was paved and cleared
of snow. She then turned to walk toward the coworker's school van and walked onto the
unpaved grassy area between the edge of the sidewalk and the curb and slipped on ice.
Plaintiff observed the snow and ice on the grassy area before stepping onto it. Plaintiff
testified that the sidewalk was completely clear of snow and ice.
Edoales Pettifort, another bus driver, witnessed plaintiffs accident. He testified that
he had dropped off students at the school and pulled his bus over on the driveway when
he observed plaintiff fall. Mr. Pettifort testified that everything was clear of snow and ice
except for the grassy area where plaintiff fell. Mr. Pettifort testified that plaintiff could have
walked further down the sidewalk to the curb cut, 'iVhich was paved and cleared of snow
and ice, in order to get to the van. The sidewalk was clear all the way from the main
entrance of the school to the curb cut. Plaintiff also could have walked by the area where
the students entered and exited the building which was also cleared and paved. Mr.
Pettifort testified that he never observed people entering or exiting a bus in the area where
plaintiff fell.It was not an area where anyone was expected to get on or off the bus. He
testified further that the area where plaintiff was meeting her coworker in the van was a
no parking area because it was a fire zone. After dropping off students, bus drivers would
pull their bus up to that area to get out of the way, however, the drivers would only go
there to remain on the bus until they were ready to leave the premises.
In opposition, plaintiff argues that defendant failed to make a prima facie showing
of entitlement to summary judgment and that issues of fact exist which preclude summary
judgment.
Discussion
A party seeking summary judgment bears the initial burden of affirmatively
demonstrating its entitlement to summary judgment as a matter of law (see Winegrad v
N. Y. Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320
[1986]). "Once this showing has been made ... the burden 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" (see
Zuckerman v City of New York, 49 NY2d 557 [1980]).
Here, defendant established itsprima facie entitlement to judgment as a matter of
law by demonstrating that it did not have a duty to clear snow and ice from the grassy
area where plaintiffs accident occurred which was not intended to be a public walkway
(see Rosenbloom v City of New York, 254 AD2d 474 [2d Dept 1998] [holding that
defendant Long Island Rail Road was entitled to summary judgment, as it had no duty to
clear snow and ice from an unpaved area that was not intended to be a public walkway,
particularly when nearby sidewalks provided an adequate means of access to and from
2
2 of 3
FILED: WESTCHESTER COUNTY CLERK 05/04/2017 10:29 AM INDEX NO. 62398/2015
NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 05/04/2017
McLaughlin v. Chappaqua Central School District,Index No. 62398/2015
the railroad station]; Maldonado v Novartis Pharms. Corp., 58 AD3d 813 [2d Dept 2009];
Belo-Osagie v Starrett City Assn., 41 AD3d 521 [2d Dept 2007] [holding that defendants
demonstrated their entitlement to judgment as a matter of law by establishing that they
had no duty to clear snow and ice from the subject unpaved path where the plaintiff
allegedly fell]; Moran v State Duct Corp., 41 AD3d 440 [2d Dept 2007]). In opposition,
plaintiff failed to raise a triable issue of fact (see Smith v Hariri Realty Assoc., Inc., 109
AD3d 897 [2d Dept 2013]; Kaplan v DePetro, 51 AD3d 730, 731 [2d Dept 2008]; Fung v
Japan Airlines Co., Ltd., 51 AD3d 861, 862 [2d Dept 2008]; Belo-Osagie v Starrett City
Assn., 41 AD3d 521).
Accordingly, defendant's motion for summary judgment dismissing plaintiff's
complaint is GRANTED.
Dated: White Plains, New York
May 4,2017
6Jr1J~
H~-M-O-,-J.-s-.c-.--
.
H: ALPHABETICAL MASTER LIST -WESTCHESTER/McLaughlin v. Chappaqua CentralSchool District
3
3 of 3
Preview
FILED: WESTCHESTER COUNTY CLERK 05/04/2017 10:29 AM INDEX NO. 62398/2015 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 05/04/2017 To commence the statutory time period for appeals as of right (CPLR 5513 [aJ), you are advised to serve a copy of this order, with notice of entry, upon allparties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. WILLIAM J. GIACOMO, J.S.C. ____________________________ -- -c- - - - -- - - - X JOANN M. McLAUGHLIN, Plaintiff, Index No. 62398/2015 - against- DECISION & ORDER CHAPPAQUA CENTRAL SCHOOL DISTRICT, Defendant. ___- --- ---- -- - --- -- -- --- --- --- --- -- --- --- x In this action to recover damages for personal injuries, defendant moves for summary judgment, pursuant to CPLR 3212, dismissing the complaint: Papers Considered 1. Notice of Motion/Affirmation of Lauren J. Demase, Esq.lExhibits A-J; 2. Affirmation of Michael L. Taub, Esq. in Opposition/Exhibits A-G/Affidavit of Joann M. McLaughlin/Exhibit AlAffidavit of Steven Roberts/Exhibit A-B; 3. Reply Affirmation of Lauren J. Demase, Esq. Factual and Procedural Background Plaintiff commenced this action against defendant Chappaqua Central School District to recover damages for personal injuries sustained on January 22, 2015. On that date, plaintiff fell on ice while walking on an unpaved grassy area between the paved sidewalk and a curb at the Seven Bridges Middle School in Chappaqua. At the time plaintiff was working as a bus driver and road test examiner for non-party Chappaqua Transportation. Defendant moves for summary judgment dismissing the complaint on the grounds that it did not have a duty to remove snow and ice from the grassy area, which was not an intended walkway. Defendant also argues that even if it owed plaintiff a duty, plaintiff's conduct was the sole-proximate cause of the accident and itdid not have actual or constructive notice of the icy condition. 1 of 3 FILED: WESTCHESTER COUNTY CLERK 05/04/2017 10:29 AM INDEX NO. 62398/2015 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 05/04/2017 McLaughlin v. Chappaqua Central School District,Index No. 62398/2015 Defendant submitted plaintiffs deposition testimony wherein she testified that after she exited the school bus she stepped onto the sidewalk and was on her way to meet a coworker who had agreed to drive her back to the bus yard. Plaintiff exited the bus and walked approximately one-hundred feet on the sidewalk, which was paved and cleared of snow. She then turned to walk toward the coworker's school van and walked onto the unpaved grassy area between the edge of the sidewalk and the curb and slipped on ice. Plaintiff observed the snow and ice on the grassy area before stepping onto it. Plaintiff testified that the sidewalk was completely clear of snow and ice. Edoales Pettifort, another bus driver, witnessed plaintiffs accident. He testified that he had dropped off students at the school and pulled his bus over on the driveway when he observed plaintiff fall. Mr. Pettifort testified that everything was clear of snow and ice except for the grassy area where plaintiff fell. Mr. Pettifort testified that plaintiff could have walked further down the sidewalk to the curb cut, 'iVhich was paved and cleared of snow and ice, in order to get to the van. The sidewalk was clear all the way from the main entrance of the school to the curb cut. Plaintiff also could have walked by the area where the students entered and exited the building which was also cleared and paved. Mr. Pettifort testified that he never observed people entering or exiting a bus in the area where plaintiff fell.It was not an area where anyone was expected to get on or off the bus. He testified further that the area where plaintiff was meeting her coworker in the van was a no parking area because it was a fire zone. After dropping off students, bus drivers would pull their bus up to that area to get out of the way, however, the drivers would only go there to remain on the bus until they were ready to leave the premises. In opposition, plaintiff argues that defendant failed to make a prima facie showing of entitlement to summary judgment and that issues of fact exist which preclude summary judgment. Discussion A party seeking summary judgment bears the initial burden of affirmatively demonstrating its entitlement to summary judgment as a matter of law (see Winegrad v N. Y. Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). "Once this showing has been made ... the burden 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" (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Here, defendant established itsprima facie entitlement to judgment as a matter of law by demonstrating that it did not have a duty to clear snow and ice from the grassy area where plaintiffs accident occurred which was not intended to be a public walkway (see Rosenbloom v City of New York, 254 AD2d 474 [2d Dept 1998] [holding that defendant Long Island Rail Road was entitled to summary judgment, as it had no duty to clear snow and ice from an unpaved area that was not intended to be a public walkway, particularly when nearby sidewalks provided an adequate means of access to and from 2 2 of 3 FILED: WESTCHESTER COUNTY CLERK 05/04/2017 10:29 AM INDEX NO. 62398/2015 NYSCEF DOC. NO. 53 RECEIVED NYSCEF: 05/04/2017 McLaughlin v. Chappaqua Central School District,Index No. 62398/2015 the railroad station]; Maldonado v Novartis Pharms. Corp., 58 AD3d 813 [2d Dept 2009]; Belo-Osagie v Starrett City Assn., 41 AD3d 521 [2d Dept 2007] [holding that defendants demonstrated their entitlement to judgment as a matter of law by establishing that they had no duty to clear snow and ice from the subject unpaved path where the plaintiff allegedly fell]; Moran v State Duct Corp., 41 AD3d 440 [2d Dept 2007]). In opposition, plaintiff failed to raise a triable issue of fact (see Smith v Hariri Realty Assoc., Inc., 109 AD3d 897 [2d Dept 2013]; Kaplan v DePetro, 51 AD3d 730, 731 [2d Dept 2008]; Fung v Japan Airlines Co., Ltd., 51 AD3d 861, 862 [2d Dept 2008]; Belo-Osagie v Starrett City Assn., 41 AD3d 521). Accordingly, defendant's motion for summary judgment dismissing plaintiff's complaint is GRANTED. Dated: White Plains, New York May 4,2017 6Jr1J~ H~-M-O-,-J.-s-.c-.-- . H: ALPHABETICAL MASTER LIST -WESTCHESTER/McLaughlin v. Chappaqua CentralSchool District 3 3 of 3