Opinion
Index No. 613500/2019 Mot. Seq. No. 01-MD
09-14-2021
CYNTHIA GUNNELLS and DAWN CACCAVALLA, Plaintiffs, v. THE TOWN OF BROOKHAVEN and QUINTAL CONTRACTING, CORP., Defendants.
LASKY & STEINBERG, P.C. Attorney for Plaintiffs ANNETTE EADERESTO, ESQ. BROOKHAVEN TOWN ATTORNEY Attorneys for Defendant- Town of Brookhaven MAZZARA & SMALL,P.C. Attorneys for Defendant- Quintal
Unpublished Opinion
MOTION DATE 5-19-2021
SUBMIT DATE 8-12-2021
LASKY & STEINBERG, P.C. Attorney for Plaintiffs
ANNETTE EADERESTO, ESQ. BROOKHAVEN TOWN ATTORNEY Attorneys for Defendant- Town of Brookhaven
MAZZARA & SMALL,P.C. Attorneys for Defendant- Quintal
PRESENT-. Hon. JOSEPH A. SANTORELLI Justice
HON. JOSEPH A. SANTORELLI, J.S.C.
Upon the following papers numbered 1 to 46 read on this motion for summary judgment; Notice of Motion and supporting papers 1 - 12; Notice of Cross Motion and supporting papers Answering Affidavits and supporting papers 13-38; Replying Affidavits and supporting papers 39-46; Other (and after hearing counsel in support and opposed to the motion) it is, Defendant, Town of Brookhaven, hereinafter "TOB", moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and all cross-claims against it. In support of this motion the TOB contends that it did not have prior written notice of the alleged defect. The plaintiff opposes the motion and argues that the TOB created the dangerous condition.
The plaintiffs commenced this action to recover damages for personal injuries allegedly sustained at approximately 5:00 p.m. on August 25, 2018 when plaintiff Cynthia Gunnells tripped on a "depressed storm drain cap on a cement walkway" between 79 and 78 Bayview Avenue in the Hamlet of Ocean Bay Park, New York. Gunnells spouse, plaintiff Dawn Caccavalla, asserts a derivitive claim for loss of consortium. The plaintiffs filed a Notice of Claim on November 26, 2018. A hearing pursuant to General Municipal Law 50-H was held on March 19, 2019 wherein Gunnells testified. The plaintiffs filed a summons and complaint on July 16, 2019, The TOB filed its answer with affirmative defenses on August 16, 2019. The plaintiffs filed a supplemental summons and amended complaint to add defendant Quintal Contracting Corp, on July 1, 2020. The TOB filed its verified answer to the amended complaint on July 28, 2020. Quintal filed its verified answer to amended complaint on October 20, 2020.
CPLR §3212(b) states that a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion by summary judgment [Qian v. Farrell Lines, Inc., 105 AD 2d 653, 481 N.Y.S.2d 370 (1st Dept., 1984; affd 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985); Spearman v. Times Square Stores Corp., 96 AD 2d 552, 465 N.Y.S.2d 230 (2nd Dept., 1983); Weinstein-Kom-Miller, New York Civil Practice Sec. 3212.09)).
The proponent of a 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 from the case (Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 [1979]). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form . .. and must "show facts sufficient to require a trial of any issue of fact" CPLR3212 [b]; Gilbert Frank Corp, v Federal Insurance Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512 [1988]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept 1981]). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion (Robinson v Strong Memorial Hospital, 98 A.D.2d 976, 470 N.Y.S.2d 239 [4th Dept 1983]).
On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (see S.J. Capelin Associates v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974]), However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltic's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v Keltic's Bum Steer, supra, citing Glick & Dotleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968]; Columbus Trust Co. v Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105 [2d Dept 1985], affd, 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282).
In support of its motion, defendant TOB has submitted, inter alia, an attorney's affirmation; copies of the notice of claim; copies of the transcript from the 50-H hearing; copies of the pleadings; copies of the transcript from the examination before trial of Cynthia Gunnells; copies of the transcript from the examination before trial of Marie Angelone; a sworn affidavit of Marie Angelone; and a sworn affidavit of Linda Sullivan.
The sworn affidavit from Marie Angelone, an employee of the TOB with the Highway Department, states that she made a search of the records maintained by the Town of Brookhaven's Highway Department "for prior written complaints and/or work orders for the storm drain cap/manhole cover on the cement walkway between 79 and 78 Bayview Avenue in the Town of Ocean Bay Park, Town of Brookhaven", for ten (10) years prior regarding the subject location and the same search did not "reveal any written complaints, work orders, written notifications and/or prior notices of claim to the Town concerning the storm drain cap/manhole cover on the cement walkway. At her deposition Angelone testified that after she received the notice of claim for this action she searched the records for prior written notices, contacted the engineering department to ascertain whether the TOB maintains the location in question and contacted the Town Clerk to determine if any prior notice for the incident location had been received. She also stated that she "spoke to the foreman... Sam Rico... to see if there was a defect at the location".
The sworn affidavit from Linda Sullivan, an employee of the TOB with the Town Clerk's Office, states that she
made a diligent search of the log book, index record book and files maintained by the Town Clerk of the Town of Brookhaven... for prior written complaints of the storm drain cap/manhole cover on the cement walkway between 79 and 78 Bayview Avenue in the Town of Ocean Bay Park, Town of Brookhaven, County of Suffolk, State of New York, for seven (7) years prior to and including the date of plaintiffs accident, August 25, 2018... which search did not reveal any prior written complaints, notifications and/or prior notices of claim to the Town.
In opposition, the plaintiffs argue that the TOB created the dangerous condition. The plaintiffs submit an affidavit of engineer Stanley H. Fein, P.E., dated July 13, 2021 wherein he opines that "the depressed manhole, Manhole Cover and Walkway were negligently designed, installed and/or constructed... The depression existed from the time the manhole was created... The depression is not the result of naturally occurring processes." Fein indicates that
The concrete perimeter walls of the depression are uniformly perpendicular to the Manhole Cover. The walls are uniformly smooth and not jagged in appearance. This indicates that the concrete was formed by Brookhaven in the shape of circle, to create the manhole. All of these factors compel me to conclude with a reasonable degree of engineering certainty that the depression was affirmatively created by Brookhaven when it created the manhole within the concrete Walkway.
The Court in Zielinski v City of Mount Vernon, 115 A.D.3d 946, 947 [2d Dept 2014], held
Where, as here, a municipality has enacted a prior written notice statute, it may not be subject to liability for personal injuries caused by a defective street or sidewalk condition unless it has received prior written notice of the defect, or an exception to the written notice requirement applies (see Amabile v City of Buffalo, 93 N.Y.2d 471, 474, 715 N.E.2d 104, 693 N.Y.S.2d 77 [1999]; Salierno v City of Mount Vernon, 107 A.D.3d 971, 971-972, 966 N.Y.S.2d 901 [2013]; Laracuente v City of New York, 104 A.D.3d 822, 822, 961 N.Y.S.2d 527 [2013]). The Court of Appeals has recognized only two exceptions to this rule, "namely, where the locality created the defect or hazard through an affirmative act of negligence and where a 'special use' confers a special benefit upon the locality" (Amabile v City of Buffalo, 93 N.Y.2d at 474; see Laracuente v City of New York. 104 A.D.3d at 822; Katsoudas v City of New York, 29 A.D.3d 740, 741,815 N.Y.S.2d 243 [2006]).
Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law, as its submissions raised a triable issue of fact as to whether it created the allegedly defective sidewalk condition that caused the plaintiffs accident through an affirmative act of negligence (see Kiernan v Thompson, 73 N.Y.2d 840, 841-842, 534 N.E.2d 39, 537 N.Y.S.2d 122 [1988]; Cabrera v City of New York, 21 A.D.3d 1047, 1048, 803 N.Y.S.2d 584 [2005]; Ricciuti v Village of Tuckahoe, 202 A.D.2d 488, 488-489, 609 N.Y.S.2d 54 [1994]).
In Miller v Vil. of E. Hampton, 98 A.D.3d 1007, 1008-1009 [2d Dept 2012], the Court held
In the instant matter, the defendant established that it did not receive prior written notice of the alleged dangerous condition. Nonetheless, it failed to meet its burden of demonstrating its prima facie entitlement to judgment as a matter of law. "[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" (Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226 [2010]; see Braver v Village of Cedarhurst, 94 A.D.3d 933, 942 N.Y.S.2d 178 [2012]). Here, the plaintiff alleged in her notice of claim, complaint, and bill of particulars that the defendant affirmatively created the dangerous condition which caused the accident through various specified acts of negligence in the design and construction of the sidewalk, the lighting, and the landscaping (see Braver v Village of Cedarhurst, 94 A.D.3d 933, 942 N.Y.S.2d 178 [2012]).
Under these circumstances, the defendant was required to eliminate all triable issues of fact as to whether it affirmatively created the alleged dangerous condition through negligent design and construction to sustain its prima facie burden (see id.. cf. Rubistello v Bartolini Landscaping, Inc., 87 A.D.3d 1003, 929 N.Y.S.2d 298 [2011]; Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1045, 912 N.Y.S.2d 77 [2010]). Since the defendant failed to do so, the Supreme Court properly denied its motion for summary judgment without regard to the sufficiency of the plaintiffs opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,853, 476 N.E.2d 642, 487N.Y.S.2d316 [1985]; Hill v Fence Man, Inc., 78 A.D.3d 1002, 1004-1005, 912 N.Y.S.2d 93 [2010]).
Based upon a review of the motion papers the Court concludes that defendant TOB did not establish its prima facie entitlement to judgment as a matter of law, and therefore the burden never shifted to the plaintiffs to submit evidence sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d at 853). Accordingly, defendant TOB's motion for summary judgment is denied.
Even assuming, arguendo that the TOB sustained its initial burden the plaintiffs proffered sufficient facts to necessitate a trial.
The foregoing constitutes the decision and Order of the Court.