Opinion
001924/07.
Decided September 30, 2008.
Fink Platz, Esqs., Attorneys for Plaintiffs, New York, NY.
Morris Duffy Alonso Faley, Esqs., Attn: Diane L. Devita, Esq., Attorneys for Defendant The Village of Cedarhurst, New York, NY.
Joseph J. Ra, Esq., Town Attorney, Attorney for Defendant Town of Hempstead, Hempstead, NY.
Lorna B. Goodman, County Attorney of Nassau County, Attn: Kimberly A. Jones, Deputy County Attorney, Attorneys for Defendant County of Nassau, Mineola, NY.
Robert Tusa, Esq., Attorney for Defendants Denis Silverman and Nina Silverman, Garden City, NY.
Defendant, Village of Cedarhurst's (the "Village"), motion, and defendant, County of Nassau's (the "County"), cross-motion, pursuant to CPLR 3212, for an order granting summary judgment dismissing plaintiffs' complaint as well as any and all cross claims asserted against them are granted.
The underlying negligence action was commenced by plaintiffs to recover damages for personal injuries plaintiff Shira Eisenberg sustained on November 4, 2005, when she tripped and fell, allegedly as a result of broken and cracked pavement located on the sidewalk area of the driveway located at 17 Lotus Street, Cedarhurst, New York.
The Village contends that it is entitled to summary judgment as a matter of law as the site of the subject accident is outside its geographical boundaries, and it, therefore, had no duty to maintain said location. The Village additionally posits that, pursuant to CPLR 9804, it cannot be held liable to plaintiffs inasmuch as it did not receive prior written notice of the alleged defect claimed to have caused plaintiff's injuries.
In support of these contentions the Village provides the affidavit of Mr. Salvatore Evola, who is employed by the Village in the capacity of Clerk/Treasurer. Mr. Evola avers that he is "familiar with the Village's boundary lines" and states that "17 Lotus Street, Cedarhurst, New York, is outside the Village of Cedarhurst's boundaries."(Village Ex. B ¶ 2). He further states that it is his responsibility to maintain records of all prior written complaints as to the condition "of the sidewalks and sidewalk areas in the Village of Cedarhurst" and that "the Village is not in possession of any records regarding this location and did not perform any work at this location" ( Id. ¶¶ 2,3).
Similar to the arguments posited by the Village, the County argues that the situs of plaintiff Shira Eisenberg's accident is not within its jurisdiction, and as a result it owed no duty to maintain the sidewalk upon which plaintiff Shira Eisenberg fell. The County further argues that even assuming such a duty did exist, no liability can be assessed as the County did not receive prior written notice of the alleged defect as required by § 12-4.0(e) of the Nassau County Administrative Code ("NCAC").
The County provides the sworn affidavit of Mr. John Dempsey, who is employed in the position of Civil Engineer II within the Nassau County Department of Public Works in the Construction Management Unit. Mr. Dempsey avers that in said capacity "and by way of work experience and records maintained by the Nassau County Department of Public Works, I am familiar with appurtenances, roadways and sidewalks under the jurisdiction of the County of Nassau" (Dempsey Aff. ¶ 2). Mr. Dempsey states that he "personally searched the Nassau County Traffic Engineering Records which include contracts, operations sheets, traffic complaints and work orders" and based thereon attests "that the Subject [sic] location is not under the jurisdiction of the County of Nassau" and that "no part of Lotus Street in the Village of Cedarhurst is under the jurisdiction of the County of Nassau" ( Id. ¶¶ 4,6). Mr. Dempsey additionally states that he "personally conducted a search of prior written notice of the alleged defective condition at the subject location for a period of three (3) years prior, up to and including the date of the alleged accident" and that said search reveals "no record of prior written notice of the alleged defective condition at the subject location" ( Id. ¶¶ 5,6).
In opposition to the respective applications interposed by the moving defendants, counsel for plaintiffs argues that summary judgment must be denied as plaintiffs have raised a triable issue of fact as to the location of the accident site. Plaintiff provides a land survey together with numerous computer print-outs from the United States Postal Service, WhitePages.com, as well as Nassau County's government website, which plaintiffs contend are documentary proof that the site of the subject accident is located within the Village and under the jurisdictional auspices of the County.
Additionally, counsel argues that said applications are premature inasmuch as depositions have not been conducted, defendants have failed to respond to outstanding discovery and that the moving defendants have failed to address, with any specificity, whether any prior written notice documents or records even exist. Counsel particularly challenges the supporting affidavits proffered by defendants herein characterizing same as "self-serving" and contends that without depositions to verify the information therein contained said affidavits are lacking in probative value and are insufficient to warrant the granting of summary judgment in favor of the moving defendants (Aff. in Opp. ¶¶ 8,12). Finally, counsel for plaintiffs contends that given the condition of the sidewalk defects, which include cracked and uneven pavement, the moving defendants knew or should have known of the alleged defective condition and thus had constructive notice thereof.
In reply, counsel for the Village argues, inter alia, that the survey annexed to plaintiffs' opposition papers is not admissible as same in not certified and in any event does not depict the boundaries of the Village. Counsel further argues that plaintiffs have failed to come forth with any evidence that the Village was in receipt of prior written notice of the alleged defective condition, and the Village, therefore, is entitled to summary judgment. Finally, counsel contends that contrary to the plaintiffs' assertions, responses to plaintiffs' Demand for Discovery and Inspection have, in fact, been provided.
The County, as well, has submitted a reply to plaintiffs' opposition, in which counsel reiterates those arguments previously posited by the County that it cannot be liable to plaintiffs as the site of the plaintiff Shira Eisenberg's accident was not under the control of the County and that the County did not receive prior written notice of the defective condition alleged to have caused plaintiff Shira Eisenberg to sustain injury. Counsel further states that contrary to plaintiffs' assertions, the County has, in fact, duly responded to plaintiffs' demand as to whether the County was in possession of prior written notice of the alleged defective condition. Making particular reference to the County's Response to Notice for Discovery and Inspection dated April 25, 2008, counsel cites to "item number 14" wherein the County responded that it "is not in possession of any written or oral reports regarding the events involved in this action including 3 years prior to and including the date of the accident herein" (Jones Reply ¶ 8).
It is well settled that a motion for summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue of fact ( Sillman v Twentieth Century Fox, 3 NY2d [1957]; Bhatti v Roche, 140 AD2d 660 [2d Dept 1998]). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof in admissible form sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor. Such evidence may include affidavits from individuals who possess personal knowledge of the facts, deposition transcripts, as well as other proof annexed to an attorney's affirmation (CPLR 3212 (b); Olan v Farrell Lines, 64 NY2d 1092). Within the particular context of an action commenced by a plaintiff against a municipal corporation to recover damages for injuries sustained as a result of a defective condition, such municipality may demonstrate its entitlement to judgment as a matter of law by demonstrating that it had no prior written notice of the defective condition ( Trinidad v City of Mount Vernon , 51 AD3d 661 [2d Dept 2008]; Rodriguez v City of Mount Vernon , 51 AD3d 900 [2d Dept 2008]).
If a sufficient prima facie showing is demonstrated, the burden then shifts to plaintiff to come forward with competent evidence to demonstrate that the municipality created the alleged defective condition through an affirmative act of negligence ( Koehler v Inc. Village of Lindenhurst, 42 AD3d 438 [2d Dept 2007]; Trinidad v City of Mount Vernon, supra). It is incumbent upon the non-moving party to lay bare all of the facts which bear on the issues raised in the motion ( Mgrditchian v Donato, 141 AD2d 513 [2d Dept 1998]). Conclusory allegations are insufficient to defeat the application and the opposing party must provide more than a mere reiteration of those facts contained in the pleadings ( Toth v Carver Street Associates, 191 AD2d 631 [2d Dept 1993]).
As a general rule, absent a legally cognizable exception, a municipality which has promulgated a prior written notice provision is insulated from liability absent proof of prior written notice of the defective condition alleged to have caused plaintiff Shira Eisenberg's injuries ( Amabile v City of Buffalo, 93 NY2d 471; Trinidad v City of Mount Vernon, supra; Rodriguez v City of Mount Vernon, supra; Jacobs v Village of Rockville Centre , 41 AD3d 539 [2d Dept 2007]). Prior written notice requirements may not be obviated by either actual or constructive notice of the alleged defect ( Farrell v City of New York , 49 AD3d 806 [2d Dept 2008]; Reich v Meltzer , 21 AD3d 543 [2d Dept 2005]).
The Court of Appeals has articulated the following exceptions, where liability may still attach to a municipality notwithstanding that the prior written notice has not been provided: where the municipality created the alleged defective condition through an affirmative act of negligence and where a "special use" bestows upon the municipality a special benefit derived therefrom ( Amabile v City of Buffalo, supra).
In the instant case, both of the moving defendants herein have enacted prior written notice laws. With particular respect to the Village, it has enacted an ordinance which provides:
§ 224-1 Prerequisites to civil action
No civil action shall be brought or maintained against the Village for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed in consequence of the existence or accumulation of snow or ice upon any street, highway, bridge, culvert, sidewalk or crosswalk unless written notice of the existence such condition, relating to the particular place, had therefore actually been given to the Board of Trustees of the Village and there had been a failure or neglect on the part of said Village to cause such condition to be corrected or such snow or ice to be removed or the place otherwise made reasonable safe within a reasonable time after the receipt of such notice (Code of the Village of Cedarhurst § 224-1).
Similarly, the County has in place a prior written notice provision as is codified in NCAC § 12-4.0(e), which provides the following:
No civil action shall be maintained against the County for damages or injuries to person or property sustained by reason of any sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter being defective, out of repair, unsafe, dangerous, or obstructed or in consequence of the existence of snow or ice thereon, regardless of whether such facility be one as defined by this title or one constructed pursuant to the provisions of article six of the highway law or one constructed by the State and maintained by the County, unless such sidewalk street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter was constructed by the County or by the State or under a permit issued by the County or by the State, and unless written notice of such defective, unsafe, dangerous or obstructed condition of such sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter or the existence of snow or ice thereon was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger, or obstruction complained of or to cause such snow or ice to be removed or to make the place otherwise reasonably safe. Such written notice shall specify the particular place and nature of such defective, unsafe, dangerous or obstructive condition or the particular location of such snow or ice. Notice required to be given as herein provided shall be made in writing by certified or registered mail directed to the Office of the County Attorney, One West Street, Mineola, New York, 11501.
The Court notes that the notice provisions as embodied in the Code of the Village of Cedarhurst, as well as the NCAC are consistent with the statutory authority in General Municipal Law § 50-e(4) which expressly articulates those particular defects for which a municipality may require prior written notice as a condition precedent to commencing a civil action ( White v Incorporated Village of Hempstead , 41 AD3d 709 [2d Dept 2007]; compare Walker v Town of Hempstead, 84 NY2d 360).
Addressing now the applications sub judice, the Court finds that the moving defendants have made their prima facie showing to entitlement to judgment as a matter of law ( Koehler v Incorporated Vill. of Lindenhurst, supra; Semprini v Village of Southampton, 48 AD3d 543 [2d Dept 2008]). The affidavits of Mr. Evola and Mr. Dempsey, and the averments therein contained, are each predicated upon the individual affiant's personal knowledge and review of the relevant documentation and are thus competent evidence in support of the respective applications (CPLR 3212 (b); Zuckerman v City of New York, 49 NY2d 557; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065).
The Village, through the proffered affidavit of Mr. Evola, has demonstrated that the situs of plaintiff Shira Eisenberg's accident is not located within the geographical boundaries of the Village. Moreover, even assuming arguendo that plaintiff Shira Eisenberg did indeed sustain injury at a location within the Village limits, Mr. Evola clearly stated that the Village was not in possession of any prior written notices as to any defective conditions relative to 17 Lotus Street, Cedarhurst, New York, and that no work was ever done by the Village at said location.
As to the County, Mr. Dempsey stated that upon his personal search and review of Nassau County's records, the sidewalk upon which plaintiff Shira Eisenberg tripped and fell was beyond the jurisdiction of the County and that the County had no notice of any defective condition relative thereto.
In opposition, plaintiffs have failed to raise a triable issue of fact ( Zuckerman v City of New York, supra). Even assuming this Court were to fully credit as probative the annexed exhibits purporting to demonstrate the geographical location of the accident site as being within the boundaries of the Village and under the jurisdiction of the County, plaintiffs have failed to come forth with any evidence that either of these municipalities created the defective condition alleged to have caused plaintiff Shira Eisenberg's accident ( Koehler v Incorporated Vill. of Lindenhurst, supra; Trinidad v City of Mount Vernon, supra). The Court finds unavailing, plaintiffs' argument that as depositions have yet to take place the within applications should be denied as premature.
CPLR 3212 (f) provides the following:
"Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just."
In the instant matter, the information relevant to the existence of both prior written notice and whether any work was conducted at the subject location would logically reside within the control of the respective municipalities. This information has been provided, however, by way of the proffered affidavits.
Further, while fully cognizant and mindful of CPLR Article 31 and its dictate that all information material and necessary to the prosecution or defense of a cause of action is discoverable, this Court fails to perceive the utility of deposing witnesses on behalf of both the Village and the County to probe further issues relating to notice and alleged acts of negligent maintenance in view of the supporting affidavits which have addressed these particular issues.
The caption of this matter is amended to read as follows:
"SHIRA EISENBERG and JEFFREY EISENBERG, Plaintiffs, -against- TOWN OF HEMPSTEAD, DENIS SILVERMAN and NINA SILVERMAN, Defendants."
This decision constitutes the order of the court.