Opinion
2012-12-13
Joseph D'ANTUONO et al., Appellants, v. VILLAGE OF SAUGERTIES, Respondent, et al., Defendant.
Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for appellants. Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Peter Balouskas of counsel), for respondent.
Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), for appellants. Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Peter Balouskas of counsel), for respondent.
Before: MERCURE, J.P., ROSE, LAHTINEN, McCARTHY and EGAN JR., JJ.
MERCURE, J.P.
Appeals from an order and an amended order of the Supreme Court (Melkonian, J.), entered October 19, 2011 and November 17, 2011 in Ulster County, which, among other things, granted a motion by defendant Village of Saugerties for summary judgment dismissing the complaint against it.
In February 2009, plaintiff Joseph D'Antuono (hereinafter plaintiff) was injured when he slipped while attempting to traverse a snowbank to insert money into a parking meter owned by defendant Village of Saugerties. Plaintiff fell backward into the street, resulting in various injuries, including a fractured vertebra. Plaintiff and his wife, derivatively, thereafter commenced this personal injury action against the Village and defendant R & J Tamayo, LLC, the alleged owner of real property abutting the portion of the sidewalk where plaintiff fell. Supreme Court granted the Village's subsequent motion for summary judgment dismissing the complaint against it, and plaintiffs now appeal.
Supreme Court denied Tamayo's motion for summary judgment, and Tamayo has withdrawn and discontinued its appeal.
We affirm. It is undisputed that the Village did not receive written notice of the dangerous condition, as required by Village Law § 6–628. Plaintiffs argue, however, that questions of fact exist regarding the applicability of the two exceptions to the statutory rule, which “is obviated where the plaintiff demonstrates that the municipality ‘created the defect or hazard through an affirmative act of negligence’ or that a ‘special use’ conferred a benefit on the municipality” ( Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 127–128, 927 N.Y.S.2d 304, 950 N.E.2d 908 [2011], quoting Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999];see Poirier v. City of Schenectady, 85 N.Y.2d 310, 314–315, 624 N.Y.S.2d 555, 648 N.E.2d 1318 [1995] ).
Regarding whether the Village created the condition, it submitted the deposition of Robert Ciarlante, its Superintendent of Public Works, who stated that the portion of the street on which plaintiff fell is a state highway that is maintained by the State of New York. Ciarlante further averred that, while the Village sometimes clears snow from the sides of the road as a courtesy, it had not done so for at least two weeks prior to plaintiff's fall, and submitted records to substantiate his assertion. Inasmuch as plaintiffs failed to submit any evidence demonstrating that the Village recently plowed the area or performed any other activity that created the dangerous condition, Supreme Court properly concluded that the first exception does not apply ( see Groninger v. Village of Mamaroneck, 17 N.Y.3d at 129–130, 927 N.Y.S.2d 304, 950 N.E.2d 908;Roser v. City of Kingston, 251 A.D.2d 936, 936, 674 N.Y.S.2d 877 [1998];cf. San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111, 117–118, 919 N.Y.S.2d 459, 944 N.E.2d 1098 [2010] ). With respect to the special use exception, a municipality acts in a governmental capacity pursuant to its policepowers, and not in a proprietary capacity, by maintaining parking meters ( see Roser v. City of Kingston, 251 A.D.2d at 936, 674 N.Y.S.2d 877). Thus, the Village does not “ derive[ ] a special benefit from that property unrelated to the public use,” and the special use exception does not apply ( Poirier v. City of Schenectady, 85 N.Y.2d at 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318;see Bogorova v. Incorporated Vil. of Atl. Beach, 51 A.D.3d 840, 840–841, 858 N.Y.S.2d 349 [2008];Loiaconi v. Village of Tarrytown, 36 A.D.3d 864, 865, 829 N.Y.S.2d 191 [2007];see generally ITT Hartford Ins. Co. v. Village of Ossining, 257 A.D.2d 606, 607, 684 N.Y.S.2d 258 [1999] ).
Finally, because plaintiffs failed to demonstrate “that further discovery might reveal material facts that are in defendant's exclusive possession,” Supreme Court's grant of summary judgment to the Village was not premature ( Semzock v. State of New York, 97 A.D.3d 1012, 1013, 949 N.Y.S.2d 236 [2012] ). We have considered plaintiffs' remaining arguments insofar as they are relevant to this appeal, and find them to be lacking in merit.
ORDERED that the order and amended order are affirmed, without costs.
ROSE, LAHTINEN, McCARTHY and EGAN JR., JJ., concur.