Opinion
Index No. 70456/2018 Motion Sequence Nos. 1 2
03-05-2021
CARLA MORALES, Plaintiff, v. VILLAGE OF OSSINING AND ANTONIO SCIPIONE, JR., Defendants.
Unpublished Opinion
To commence the statutory time for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
DECISION AND ORDER
HON. DAVID F. EVERETT JUSTICE.
The following papers were considered on the motions:
Notice of Motion Defendant Village of Ossining /Attorney Affirmation/Exhibits/Amended Attorney Affirmation/So-Ordered Stipulation/Affirmation in Opposition (NYSCEF documents numbered 31-49, 55)
Attorney Opposition Affirmation/Marletta Affidavit/Exhibits (NYSCEF documents numbered 69-72)
Attorney Reply Affirmation (NYSCEF document numbered 77)
Notice of Cross Motion Defendant Scipione, Jr./Attorney Affirmation/Exhibits (NYSCEF documents number 59-67)
Attorney Opposition Affirmation (NYSCEF document numbered 68) Attorney Opposition Affirmation/Marletta Affidavit/Exhibits (NYSCEF documents number 73-76)
Attorney Reply Affirmation (NYSCEF document numbered 78)
The plaintiff commenced this action against the Village of Ossining (Village) and Antonio Scipione, Jr. (Scipione) to recover damages for personal injuries. The plaintiff alleges that she sustained personal injuries when she tripped and fell on a curbstone/step in front of 33 Terrace Avenue, Village of Ossining. She alleges, among other things, that Scipione owned 33 Terrace Avenue, that Scipione derived a special use from the location where her incident occurred, and that the Village created the condition. In motion sequence number 1, the Village moves, in effect, for summary judgment dismissing the complaint and cross claims insofar as asserted against it. In motion sequence number 2, Scipione cross-moves for summary judgment dismissing the complaint and cross claim insofar as asserted against him. The motion and cross motion were recently reassigned to this Part. For reasons set forth below, the motion and cross motion are denied.
The Village's Motion
The Village argues, inter alia, that it is entitled to summary judgment dismissing the complaint and cross claims insofar as asserted against it because, despite the Village's prior written notice law, the Village Clerk had no prior written notice of any defective condition at the location of plaintiff's alleged incident.
On a motion for summary judgment, the moving party must present prima facie proof demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). If the moving party carries this initial burden, then the nonmoving party must produce evidentiary proof in admissible form to require a trial of material issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). The court must view the evidence in the light most favorable to the nonmoving party (see Pearson v Dix McBride, LLC, 63 A.D.3d 895).
"Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies" (Palka v Village of Ossining, 120 A.D.3d 641, 641 [2d Dept 2014]; see Poirier v City of Schenectady, 85 N.Y.2d 310 [1995]). "Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it" (Miller v Village of E. Hampton, 98 A.D.3d 1007, 1008 [2d Dept 2012]). "The affirmative act exception, the only exception at issue here, is limited to work by the [municipality] that immediately results in the existence of a dangerous condition" (Loghry v Village of Scarsdale, 149 A.D.3d 714, 715 [2d Dept 2017] [internal quotation marks omitted]).
"[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" (Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 214 [2d Dept 2010]). Here, the plaintiff alleged in her complaint and bill of particulars that the Village affirmatively created the defect that caused the incident. Therefore, "to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate both that it did not have prior written notice of the defect and that it did not create the defect" (Nigro v Village of Mamaroneck, 184 A.D.3d 842, 843 [2d Dept 2020]; see Loghry v Village of Scarsdale, 149 A.D.3d at 715). The Village established, prima facie, that it did not have prior written notice of the defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect (see Nigro v Village of Mamaroneck, 184 A.D.3d at 843). Thus, the burden never shifted to the plaintiff to submit evidence sufficient to raise a triable issue of fact. Consequently, the Village's motion for summary judgment dismissing the complaint and cross claims insofar as asserted against it is denied.
Scipione's Cross Motion
Scipione argues that summary judgment dismissing the complaint and cross claim insofar as asserted against him is warranted because “(1) the complained-of accident took place on property owned by Defendant, Village, not Scipione; (2) the controlling Village ordinance contains no language transferring liability to the adjacent property owner; and (3) Scipione made no special use of the property” (see Scipione's Attorney's Affirmation in Support, & 3).
"Generally, 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 [1996]). "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 [2d Dept 2011]).
Here, Scipione failed to establish his prima facie entitlement to judgment as a matter of law dismissing the complaint and cross claim insofar as asserted against him. He failed to establish, prima facie, that the defect did not arise as a result of his special use of the location where the incident occurred (see e.g. Bisono v Quinn, 125 A.D.3d 704, 705 [2d Dept 2015]). Since Scipione did not meet his initial burden as the movant, the burden never shifted to the opposing parties to submit evidence sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]).
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the Village's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is denied; and it is further, ORDERED that Scipione's cross motion for summary judgment dismissing the complaint and cross claim insofar as asserted against him is denied; and it is further, ORDERED that the plaintiff must, within ten days of the date of entry hereof, serve a copy of this Decision and Order, with notice of entry, upon the defendants; and it is further, ORDERED that the plaintiff must, within ten days after service of notice of entry as aforesaid, file proof of said service via NYSCEF; and it is further, ORDERED that the parties will appear in the Settlement Conference Part. Due to the COVID-19 public health emergency, the Clerk of that Part will direct the date, time, and method of the settlement conference.
The foregoing constitutes the decision and order of the Court.