Opinion
No. 2020-07109 Index No. 606086/18
08-21-2024
Frank Sanfilippo, appellant, v. Mary Kull, et al., respondents, et al., defendant.
Leitner Varughese Warywoda, PLLC, Melville, NY (Justin Varughese of counsel), for appellant. Chesney, Nicholas & Brower, LLP, Syosset, NY (Lindsie B. Alterkun and William Crowe of counsel), for respondent Mary Kull. Leventhal, Mullaney & Blinkoff, LLP, Roslyn, NY (Steven G. Leventhal of counsel), for respondent Town of Hempstead.
Leitner Varughese Warywoda, PLLC, Melville, NY (Justin Varughese of counsel), for appellant.
Chesney, Nicholas & Brower, LLP, Syosset, NY (Lindsie B. Alterkun and William Crowe of counsel), for respondent Mary Kull.
Leventhal, Mullaney & Blinkoff, LLP, Roslyn, NY (Steven G. Leventhal of counsel), for respondent Town of Hempstead.
MARK C. DILLON, J.P. LARA J. GENOVESI JANICE A. TAYLOR LOURDES M. VENTURA, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered August 12, 2020. The order granted the separate motions of the defendants Mary Kull and Town of Hempstead for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed, with one bill of costs.
In February 2017, the plaintiff allegedly was injured when he slipped and fell on ice on a sidewalk adjacent to real property owned by the defendant Mary Kull located in the defendant Town of Hempstead. In May 2018, the plaintiff commenced this action to recover damages for personal injuries against Kull, the Town, and another defendant. Thereafter, Kull and the Town separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. In an order entered August 12, 2020, the Supreme Court granted the separate motions. The plaintiff appeals.
The Supreme Court properly granted Kull's motion for summary judgment dismissing the complaint insofar as asserted against her. "Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous [or] defective conditions to public sidewalks is placed on the municipality and not the abutting landowner" (Hausser v Giunta, 88 N.Y.2d 449, 452-453; see Daniel v Khadu, 190 A.D.3d 817, 818). Here, although section 181-11 of the Code of the Town of Hempstead requires an abutting landowner to keep a sidewalk in good and safe repair, it does not specifically impose tort liability for a breach of that duty (see Daniel v Khadu, 190 A.D.3d 817 at 819; see also Kearns v Cedar Cove Dev. Corp., 208 A.D.3d 466, 467). Nevertheless, an owner of property abutting a public sidewalk may be held liable where it undertakes snow and ice removal efforts which make the naturally occurring conditions more hazardous (see Cardona v City of New York, 222 A.D.3d 711; Robles v City of New York, 56 A.D.3d 647).
In this case, Kull established, prima facie, that her snow removal efforts while a storm was in progress did not create a hazardous condition or exacerbate a natural hazard created by the storm (see Mullaney v City of New York, 125 A.D.3d 948; Wei Wen Xie v Ye Jiang Yong, 111 A.D.3d 617). In opposition to Kull's prima facie showing, the plaintiff failed to raise a triable issue of fact. The opinions contained in the affidavit of the plaintiff's meteorological expert as to how the ice was formed were based on speculation and conjecture (see Ryan v Beacon Hill Estates Coop., Inc., 170 A.D.3d 1215, 1216). The expert's opinion that the ice that allegedly caused the accident formed as a result of snow melt product applied to the sidewalk by Kull was of no probative value, as it was an opinion outside his area of expertise and the expert did not establish a foundation for his opinion (see e.g. Tsimbler v Fell, 123 A.D.3d 1009).
The Supreme Court also properly granted the Town's motion for summary judgment dismissing the complaint insofar as asserted against it. "When a municipality has adopted a prior written notice law, the municipality 'cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies'" (Schaum v City of New York, 216 A.D.3d 691, 691, quoting Sanon v MTA Long Is. R.R., 203 A.D.3d 773, 775; see Amabile v City of Buffalo, 93 N.Y.2d 471, 474). "Where such a local law is in effect, '[p]rior written notice of a defective condition is a condition precedent to maintaining an action against a municipality'" (Schaum v City of New York, 216 A.D.3d at 691, quoting Schiller v Town of Ramapo, 202 A.D.3d 1022, 1022). "To be entitled to summary judgment, the municipality must first establish that it lacked prior written notice of the alleged defect" (id. at 692; see Smith v City of New York, 210 A.D.3d 53, 69). Upon that showing, "'the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule-that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality'" (Smith v City of New York, 210 A.D.3d at 62, quoting Yarborough v City of New York, 10 N.Y.3d 726, 728; see Groninger v Village of Mamaroneck, 17 N.Y.3d 125, 129-130).
Here, the Town established, prima facie, that it did not receive prior written notice of the ice that allegedly caused the plaintiff's accident by submitting an affidavit of the records access officer of the Town's Highway Department. In opposition to the Town's prima facie showing, the plaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit.
DILLON, J.P., GENOVESI, TAYLOR and VENTURA, JJ., concur.