Opinion
2020–03750 Index No. 602825/17
12-14-2022
Sheila PANZAVECCHIA, appellant, v. COUNTY OF NASSAU, defendant, Town of Hempstead, respondent.
Sacco & Fillas, LLP (Aydiner, P.C., Mineola, NY [Si Aydiner ], of counsel), for appellant. Leventhal, Mullaney & Blinkoff, LLP, Roslyn, NY (Steven G. Leventhal of counsel), for respondent.
Sacco & Fillas, LLP (Aydiner, P.C., Mineola, NY [Si Aydiner ], of counsel), for appellant.
Leventhal, Mullaney & Blinkoff, LLP, Roslyn, NY (Steven G. Leventhal of counsel), for respondent.
ANGELA G. IANNACCI, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, HELEN VOUTSINAS, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), dated May 1, 2020. The order granted the cross motion of the defendant Town of Hempstead for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
On June 10, 2016, the plaintiff allegedly was injured when she fell off her bicycle after riding through sand accumulated on a roadway maintained by the defendant Town of Hempstead. In April 2017, the plaintiff commenced this action to recover damages for personal injuries against the Town and another defendant. Thereafter, the Town cross-moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it had not received prior written notice of the alleged sand condition. In an order dated May 1, 2020, the Supreme Court granted the Town's cross motion. The plaintiff appeals.
Initially, contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in considering the Town's untimely cross motion for summary judgment dismissing the complaint insofar as asserted against it. Pursuant to CPLR 3212(a), courts have "considerable discretion to fix a deadline for filing summary judgment motions" ( Brill v. City of New York, 2 N.Y.3d 648, 651, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). "Absent a ‘satisfactory explanation for the untimeliness,’ constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits" ( Dojce v. 1302 Realty Co., LLC, 199 A.D.3d 647, 649, 157 N.Y.S.3d 478, quoting Brill v. City of New York, 2 N.Y.3d at 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 ). "[S]ignificant outstanding discovery may, in certain circumstances, constitute good cause for a delay in making a motion for summary judgment" ( Navarro v. Damac Realty, LLC, 202 A.D.3d 1100, 1101, 159 N.Y.S.3d 887 ). Here, the Town established good cause for the untimely filing of its cross motion for summary judgment dismissing the complaint insofar as asserted against it by demonstrating that the plaintiff had scheduled the deposition of the Town's Highway Department Records Access Officer after the deadline for filing motions for summary judgment (see Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 129, 711 N.Y.S.2d 131, 733 N.E.2d 203 ; Butt v. Bovis Lend Lease LMB, Inc., 47 A.D.3d 338, 340, 847 N.Y.S.2d 84 ; Pena v. Women's Outreach Network, Inc., 35 A.D.3d 104, 108, 824 N.Y.S.2d 3 ; cf. Kunz v. Gleeson, 9 A.D.3d 480, 481, 781 N.Y.S.2d 50 ). " ‘Where ... a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies’ " ( Loghry v. Village of Scarsdale, 149 A.D.3d 714, 715, 53 N.Y.S.3d 318, quoting Palka v. Village of Ossining, 120 A.D.3d 641, 641, 992 N.Y.S.2d 273 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Miller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171 ). If a municipality establishes that it did not receive prior written notice of the defect, "the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule," including that the municipality affirmatively created the defect through an act of negligence ( Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129–130, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; Smith v. City of New York, 210 A.D.3d 53, 175 N.Y.S.3d 529 ).
Here, the Town established, prima facie, that it did not receive prior written notice of the alleged sand condition by submitting the affidavit of its Highway Department Records Access Officer. In opposition to the Town's prima facie showing, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, evidence that certain residents had made phone calls to the Town about sand in the roads did not create a triable issue of fact as to prior written notice, which cannot be established by verbal complaints (see Gorman v. Town of Huntington, 12 N.Y.3d 275, 280, 879 N.Y.S.2d 379, 907 N.E.2d 292 ; Tortorici v. City of New York, 131 A.D.3d 959, 960, 16 N.Y.S.3d 572 ).
Accordingly, the Supreme Court properly granted the Town's cross motion for summary judgment dismissing the complaint insofar as asserted against it.
IANNACCI, J.P., CHAMBERS, WOOTEN and VOUTSINAS, JJ., concur.