Opinion
10906-03.
Decided February 16, 2006.
Based upon the foregoing papers, Defendant's motion for Summary Judgment pursuant to CPLR § 3212 is hereby granted.
This is an action for personal injuries allegedly sustained as a result of a trip and fall on a sidewalk, in front of the premises known as 80 8th Avenue, Sea Cliff, New York. The accident occurred on May 19, 2002. The plaintiff brought an action by Summons and Complaint on July 11, 2003 against the adjacent homeowners and the Village of Sea Cliff (hereinafter "Village").
The Village joined issue by an Answer dated July 24, 2003. The plaintiff served a Verified Bill of Particulars on March 19, 2004. All discovery was completed and depositions were performed. As per the certification conference order dated July 25, 2005, the parties were permitted to make a motion for Summary Judgment within 90 days of filing the Note of Issue. A Note of Issue was filed on August 5, 2005. The instant motion was filed on November 7, 2005.
Defendant filed this motion for Summary Judgment dated October 31, 2005 on November 7, 2005, 94 days after filing the Note of Issue. Contrary to defendant's assertions, the motion is untimely. It is within the court's discretion to consider late motions, including any sanctions if necessary. Providing an extension for filing a late motion is not considered an abuse of discretion by the Court. Rossi v. Arnat Ogden Medical Center, 252 AD2d 778, (3rd Dept. 1998)
In light of the facts and circumstances, and in the interest of judicial economy and justice this Court will entertain the defendant's motion for Summary Judgment.
THE LAW
In order to maintain an action against the Village for personal injuries, written notice of a defective unsafe, dangerous or obstructed condition must be given to the Village Clerk. Village of Sea Cliff § 110-19. There are two exceptions to the statute requiring prior written notice: 1.) where the locality is affirmatively negligent in creating the alleged condition, and 2.) where a special use confers a special benefit upon the locality. Amabile v. City of Buffalo, 93 NY2d 471 (1999).
It is well settled that if a " complaint alleges that the municipality created or caused the hazardous condition, prior written notice is not required to maintain the action." Horton v. City of Schenectady, 177 AD2d 823 (3rd Dept. 1999), citing, Hogan v. Grand Union Co., 126 AD2d 875 (3rd Dept. 1987). In cases where there is no prior written notice of the defect, it is necessary for the plaintiff to establish affirmative negligence on the part of the municipality to hold them liable. Zizzo v. City of New York, 176 AD2d 722 (2nd Dept. 1991)
In a motion for Summary Judgment, the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of material issues of fact. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957); Friends of Animals, Inc. V. Associated Fur Mfrs., Inc., 46 NY2d 1065 (1979); Zuckerman v. City of New York, 49 NY2d 557 (1980); Alvarez v. Prospect Hospital, 68 NY2d 320 (1986).
The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad v. New York University Medical Center, 64 NY2d 851 (1985). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Zuckerman v. City of New York, 49 NY2d 557 (1980). The primary purpose of a summary judgment motion is issue finding, not issue determination. Garcia v. J.C. Duggan, Inc., 180 AD2d 579 (1st Dept. 1992).
This Court finds that defendant has made a prima facie case showing entitling them to Summary Judgment as a matter of law, thereby, shifting the burden to plaintiff to demonstrate the existence of material issues of fact.
DISCUSSION
Defendant alleges that the motion for Summary Judgment should be granted on the grounds it did not receive written prior notice of a defect located at the accident site as required by Sea Cliff Village Law § 110-19.
The plaintiff does not dispute that the Village did not receive written notice of the alleged defect, but instead contends in an affirmation by their attorney that written notice was not required because the Village created the defect. In opposition to defendant's motion, plaintiff's attorney sets forth numerous allegations of affirmative negligence. Plaintiff states: 1) In 1996 or 1997, the Village created the defect in that it participated in reconstruction of eighty percent (80%) of the sidewalk; 2) the Village planted the tree located near the uplifted portion of the sidewalk and had an ongoing pruning and removal program; and 3) the Village issued a permit, in order to repair the home adjacent to the accident site. The plaintiff also alleges in her Summons and Complaint that the defendant owned, operated and maintained the sidewalk.
The plaintiff testified that she had lived in the area for twenty-seven (27) years and never saw a defect, nor made complaints with regard to the sidewalk. Defendant's witness, Superintendent Thomas Bellingham, stated that he never received any complaints regarding the sidewalk.
Plaintiff's unsubstantiated allegations that the Village created the defect made in the affirmation of her attorney, who lacks any personal knowledge of the facts is insufficient to defeat the Village's motion. Sloan v. Village of Hempstead, 223 AD2d 632 (2nd Dept. 1190); Tyshak v. Inc. Village of Westbury, 193 AD2d 670 (2nd Dept. 1993), citing, Dabb. City of Peeksville, 178 AD2d 577 et al. Furthermore, defendant's planting of the tree, maintenance, tree pruning and removal program is at best passive negligence and is insufficient proof of notice of the defect. Zizzo v. City of New York, 176 AD2d 722 (2nd Dept. 1991); Monteleone v. Inc. Village of Floral Park, 74 NYS2d 919 (1989).
Evidence that at some time in the past repair work had been performed in the vicinity of the accident, with no proof of any negligence or any connection between prior repairs and the alleged defect warrants granting summary judgment. Witte v. Inc. Village of Port Washington, 493 NYS2d 879 {114 AD2d 359} (2nd Dept. 1985)
Although the defendant gave the adjacent homeowner a permit for repairs, there is no evidence that the defendant performed inspections of the sidewalk. Assuming arguendo, it had performed inspections, constructive notice is insufficient to defeat a motion for summary judgment where there is a village statute or ordinance. Amabile, supra.
The remaining causes of actions and evidence are insufficient to support any allegations of affirmative negligence. Allegations that a defendant owns or maintains a sidewalk are allegations of nonfeasance or passive negligence, which are insufficient to sustain an action for trip and fall, without prior written notice. Horton v. City of Schenectady, supra.
Plaintiff has failed to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact.
Accordingly, defendant's motion for summary judgment is granted and the complaint is dismissed.
This constitutes the decision and order of the Court.