Opinion
2014-07623
07-22-2015
ESTATE OF Barbara PERETZ, etc., respondent, v. VILLAGE OF GREAT NECK PLAZA, et al., appellants, et al., defendants.
Morris Duffy Alonso & Faley, New York, N.Y. (Arjay G. Yao, Andrea M. Alonso, and Kenneth E. Pitcoff of counsel), for appellant Village of Great Neck Plaza. John C. Buratti, Melville, N.Y. (Alan M. Shushan of counsel), for appellant Danad Realty, LLC. Jonathan Silver, Kew Gardens, N.Y., for respondent.
Morris Duffy Alonso & Faley, New York, N.Y. (Arjay G. Yao, Andrea M. Alonso, and Kenneth E. Pitcoff of counsel), for appellant Village of Great Neck Plaza.
John C. Buratti, Melville, N.Y. (Alan M. Shushan of counsel), for appellant Danad Realty, LLC.
Jonathan Silver, Kew Gardens, N.Y., for respondent.
PETER B. SKELOS, J.P., L. PRISCILLA HALL, SANDRA L. SGROI, and BETSY BARROS, JJ.
Opinion In an action to recover damages for personal injuries, the defendant Village of Great Neck Plaza appeals, and the defendant Danad Realty, LLC, separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), entered June 3, 2014, as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them and all cross claims insofar as asserted against each of them by the defendants ASV Construction Corp., ASV Benny Construction Co., and ASV Benny Construction Corp.
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the plaintiff, and the appellants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them and all cross claims insofar as asserted against each of them by the defendants ASV Construction Corp., ASV Benny Construction Co., and ASV Benny Construction Corp. are granted.
Barbara Peretz (hereinafter the decedent) allegedly tripped and fell on a raised cement sidewalk flag in front of a property owned by the defendant Danad Realty, LLC (hereinafter Danad), in the Village of Great Neck Plaza. The decedent's estate, by its administrator, thereafter commenced this action against Danad and the Village, among others. The Village and Danad separately moved for summary judgment dismissing the complaint insofar as asserted against each of them and all cross claims insofar asserted against each of them by the defendants ASV Construction Corp., ASV Benny Construction Co., and ASV Benny Construction Corp. (hereinafter collectively the ASV defendants). The plaintiff opposed the motion, but the ASV defendants did not. The Supreme Court denied the motions, and we reverse.
“A municipality that has adopted a ‘prior written notice law’ 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” (Sola v. Village of Great Neck Plaza, 115 A.D.3d 661, 662, 981 N.Y.S.2d 545, quoting Forbes v. City of New York, 85 A.D.3d 1106, 1107, 926 N.Y.S.2d 309 ; see Poirier v. City of Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555, 648 N.E.2d 1318 ). “The only two recognized exceptions to the prior written notice requirement are where the municipality created the defect through an affirmative act of negligence, or where the defect resulted from a special use of the property by the municipality which conferred a special benefit on it” (Levy v. City of New York, 94 A.D.3d 1060, 943 N.Y.S.2d 187 ; see Amabile v.
City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Halitzer v. Village of Great Neck Plaza, Inc., 63 A.D.3d 882, 883, 881 N.Y.S.2d 474 ). Here, the Village established its prima facie entitlement to judgment as a matter of law by demonstrating, insofar as relevant here, that it did not have prior written notice of the alleged defective condition (see Code of Village of Great Neck Plaza § 185–39; Sola v. Village of Great Neck Plaza, 115 A.D.3d at 662, 981 N.Y.S.2d 545 ; Rodriguez v. Town of Islip, 89 A.D.3d 1077, 933 N.Y.S.2d 601 ; Giffords v. Water Auth. of Great Neck N., 40 A.D.3d 695, 836 N.Y.S.2d 629 ), and that it did not create the alleged defective condition through an affirmative act of negligence (see Fryc–Cannella v. Town of N. Hempstead, 127 A.D.3d 1135, 7 N.Y.S.3d 574 ; Perez v. City of New York, 116 A.D.3d 1019, 1020, 984 N.Y.S.2d 412 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village created the alleged defective condition (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 ), and the ASV defendants did not oppose the motion.
With respect to Danad, “[g]enerally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and 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, 646 N.Y.S.2d 490, 669 N.E.2d 470 ). “An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty” (Petrillo v. Town of Hempstead, 85 A.D.3d 996, 997, 925 N.Y.S.2d 660 ; see Maya v. Town of Hempstead, 127 A.D.3d 1146, 8 N.Y.S.3d 372 ; Morelli v. Starbucks Corp., 107 A.D.3d 963, 964, 968 N.Y.S.2d 542 ). Insofar as is relevant here, Danad established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged defective condition in the sidewalk (see Maya v. Town of Hempstead, 127 A.D.3d 1146, 8 N.Y.S.3d 372 ; Dalder v. Incorporated Vil. of Rockville Ctr., 116 A.D.3d 908, 909, 983 N.Y.S.2d 835 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Perez v. City of New York, 116 A.D.3d 1019, 984 N.Y.S.2d 412 ; Smith v. Town of Brookhaven, 45 A.D.3d 567, 568, 846 N.Y.S.2d 203 ; Hyland v. City of New York, 32 A.D.3d 822, 823–824, 821 N.Y.S.2d 138 ), and the ASV defendants did not oppose the motion.
Accordingly, the Supreme Court should have granted the appellants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them and all cross claims insofar as asserted against each of them by the ASV defendants.