Opinion
Index No. 610800/19 Motion Sequence Nos. 02 03 04
02-16-2022
MELONY SAMUELS, Plaintiff, v. TOWN OF HEMPSTEAD and MOHAMMED A. ASLAM, Defendants.
Unpublished Opinion
Motion Date 11/01/21
Present: HON. RANDY SUE MARBER JUSTICE
HON. RANDY SUE MARBER JUSTICE
Papers Submitted:
Notice of Motion (Seq. 02) . . . . . . .x
Affirmation in Opposition . . . . . . .x
Reply Affirmation . . . . . . .x
Notice of Motion (Seq. 03) . . . . . . .x
Affirmation in Opposition . . . . . . .x
Reply Affirmation . . . . . . .x
Notice of Cross-Motion (Seq. 04) . . . . . . .x
Affirmation in Opposition . . . . . . .x
Affirmation in Opposition . . . . . . .x
Reply Affirmation . . . . . . .x
Upon the foregoing papers, the motion (Seq. 02) by the Defendant, TOWN OF HEMPSTEAD (the "TOWN"), seeking an Order, pursuant to CPLR § 3212, granting it summary judgment; the motion (Seq. 03) by the Defendant, MOHAMMED A. ASLAM ("ASLAM"), seeking an Order, pursuant to CPLR § 3212, granting him summary judgment; and the cross-motion (Seq. 04) by the Plaintiff, seeking an Order compelling the depositions of two nonparty witnesses, are decided as provided herein.
This is an action to recover damages for personal injuries allegedly sustained by the Plaintiff on May 26, 2017, as a result of a trip and fall incident which occurred on the sidewalk adjacent to the premises known as 94 Brentwood Lane, Valley Stream, New York (the "Premises"). The Premises is owned by the Defendant, ASLAM, and the Defendant, TOWN, has jurisdiction over the subject sidewalk.
Procedural Background
The Plaintiff initially commenced an action by the filing of a summons and complaint on or about July 27, 2018 with Index No. 610040/18, as against three municipal Defendants, the Village of Valley Stream, the County of Nassau, and the TOWN ("Action No. 1"). The Village and the County both moved to dismiss the Complaint as asserted against them in Action No. 1. By Short Form Order dated November 29, 2018, both motions were granted thereby dismissing the Village and the County from that action (See SFO annexed to Mot. Seq. 02 as Exhibit "E").
The Plaintiff thereafter commenced the within action against the Defendant, ASLAM, on or about August 7, 2019 ("Action No. 2"). In the interim, Action No. 01 was reassigned to Justice Marber and the newly filed action against ASLAM was transferred to this Part. By So-Ordered Stipulation dated December 16, 2019, Action No. 1 and Action No. 2 were consolidated for all purposes into the within action and the caption was amended to reflect such consolidation (See So-Ordered Stipulation, annexed to Mot. Seq. 02 as Exhibit "I").
On February 9, 2021, this matter was marked certified pursuant to the Certification Order that was signed by all counsel (See Certification Order, annexed to Mot. Seq. 02 as Exhibit "O"). Pursuant to the Certification Order, the Plaintiff filed a Note of Issue and Certificate of Readiness on May 7, 2021 which placed this case on the trial calendar (See Note of Issue, annexed to Mot. Seq. 02 as Exhibit "P").
Factual Background
The Plaintiff alleges that she was caused to trip and fall due to a raised sidewalk flag adjacent to the subject Premises of which Aslam is the abutting owner. In her bill of particulars as to the Town, the Plaintiff alleges that the Town had actual or constructive notice of the alleged defective sidewalk and/or that the Town created the defective condition. Notably, the Plaintiff does not make a claim that the Town had prior written notice of the alleged defective condition or that the Town derived a special use from the subject sidewalk.
With respect to the Defendant, Aslam, the Plaintiff alleges that Aslam, his agents, relatives, servants and/or friends were negligent in the maintenance and repair of the subject sidewalk causing it to be and remain misleveled, unsafe, broken, and uneven which was caused and permitted to remain in such defective condition for an unreasonable period of time; and allowing the dangerous uneven sidewalk/sidewalk tree to remain so that it presents a tripping hazard (See Mot. Seq. 02 at Exhibit "D"; see also Mot. Seq. 03 at Exhibit "F"). The Plaintiff further claims that the "depressed, hazardous, trap and uneven sidewalk/sidewalk tree well and cracked, uneven, damaged and defective sidewalk slab are a dangerous and unexpected trap for pedestrians."
Town's Summary Judgment Motion (Seq. 02):
The Town seeks dismissal of the complaint on the grounds that it did not have prior written notice of the alleged sidewalk defect and that there is no evidence to support a claim that the Town caused or created the alleged defective condition through an affirmative act of negligence. Moreover, the Town argues that even in the event the Plaintiff can somehow show that the Town planted the tree which ultimately caused the sidewalk flag to lift, the law is clear that the mere planting of a curbside tree does not rise to the level of negligence.
In support of its motion, the Town submits a sworn affidavit by Laura Taranto, employed as an Office Service Assistant by the Town's Highway Department, Sidewalk Division (See NYSECF Doc. No. 45). Based on a search conducted of the Highway Department's records, Ms. Taranto attests that her search did not reveal any evidence of prior written notice, prior complaints, prior accidents, oral or telephonic, nor did it reveal any repairs done by the Town or its contractors in the three-year period prior to the date of the Plaintiff's accident. Moreover, Taranto testified at her deposition that in the Town, the adjacent property owner is responsible for maintenance and repair of sidewalks (See Taranto Deposition Transcript at pp. 20-21, 38, annexed to Mot. Seq. 02 as Exhibit "N").
In further support of its motion, the Town submits the deposition transcript of Steven Fried, employed by the Town's Highway Department (See Fried Deposition Transcript, annexed to Mot. Seq. 02 as Exhibit "L"). Fried testified that the Town does not maintain trees located between the sidewalk and the curb (Id. at p. 8). He further testified that, although the Town has a right of way, the adjacent homeowner is responsible for maintaining the sidewalks and the trees (Id. at pp. 9-10, 35). According to Fried, the Town would only become aware of a tree or tree roots affecting the integrity of a sidewalk upon receipt of a complaint (Id. at pp. 12-13). Moreover, trees are only inspected based on receipt of complaints. In this particular case, an inspector by the name of Andrew Brust inspected the subject sidewalk only after receipt of the Plaintiff's Notice of Claim relevant to her fall that is the subject of this matter.
Based on the foregoing, the Town argues that it is entitled to summary judgment as the Town did not have any prior written notice of the alleged sidewalk defect and further, that there is no evidence tending to demonstrate that the Town caused or created the alleged defect. Moreover, in the event the Plaintiff claims that the Town was negligent for planting trees and/or failing to maintain same, the Town argues that the mere planting of a tree or the alleged failure of a municipality to maintain a tree constitutes simple nonfeasance, at best, and no liability can attach absent prior written notice.
Aslam's Summary Judgment Motion (Seq. 03):
The Defendant, Aslam, submits that there is no statutory tort liability imposed by the Town on an abutting landowner for injuries to pedestrians caused by the failure to maintain or repair adjacent sidewalks. It is further submitted that Aslam did not cause or create the alleged defective sidewalk condition, nor did Aslam make special use of the sidewalk.
Plaintiff's Cross-Motion (Seq. 04) and Opposition to Defendants' Motions:
In opposition to the Defendants' motions and in support of its cross-motion, the Plaintiff contends that both summary judgment motions must be denied as premature based on two nonparty depositions that have yet to be conducted. Plaintiff's counsel submits that at Defendant Aslam's deposition, he testified to having resided at the subject Premises only through 2009, after which two tenants rented the Premises from 2009 up to and including the date of the Plaintiff's fall. Plaintiff's Counsel states that the testimony of two nonparty tenants is "crucial" to the prosecution of this action and to oppose the summary judgment motions. However, it is noteworthy to mention that Plaintiff's counsel previously subpoenaed the two tenants by service of Subpoenas dated February 27, 2021, pursuant to which they were scheduled to appear for their nonparty depositions on March 11, 2021 (well before the note of issue was filed in this matter). However, it is undisputed that the two nonparty witnesses failed to appear on March 11, 2021 pursuant to the Subpoenas, and further undisputed that no action was taken by Plaintiff until faced with having to oppose the instant summary judgment motions filed by the Defendants.
In an attempt to lay a foundation for the necessity of the two nonparty witnesses, Plaintiff's counsel points to Aslam's deposition wherein he testified that he could not recall whether there was any repair work performed to the sidewalk; but did testify that he and the tenants "jointly took care of the property and yard." Counsel concedes that Aslam testified that he did not remember the condition of the sidewalk or any work performed on the subject Premises prior to the date of the Plaintiff's fall.
Plaintiff's counsel further submits that he reserved his right to depose both nonparty witnesses which is reflected in the transcript of March 11, 2021. Counsel subsequently served subpoenas again on both nonparty witnesses, as well as deposition notices upon both defense counsel, on August 21, 2021. Counsel for Plaintiff pleads that both witnesses are "necessary and material" since Aslam did not reside at the subject Premises at the time of the accident and that these two witnesses "would be the only individuals with direct knowledge regarding care, maintenance, repairs, and condition of the subject sidewalk." Counsel also states, in the most conclusory fashion, that the two witnesses "will likely have material information as to any actual or constructive notice as to both [the Town] as well as [Aslam]."
The Court notes that the Town's motion was filed on May 18, 2021 and Aslam's motion was filed on July 6, 2021. As such, the subpoenas and deposition notices served in August 2021 were after receipt of the Defendants' motions and at a time when Plaintiff was obligated to prepare opposition papers.
With respect to Chapter 181 of the Town's Code, Plaintiff's counsel concedes that it does not explicitly charge the abutting homeowner with tort liability for injuries resulting from a sidewalk defect. As to the exceptions of special use and/or cause and create, Plaintiff's counsel argues, again in the most conclusory fashion, that the Court cannot decide the Defendants' motions on the merits without the testimony of the two tenants who resided at the Premises for seven years prior to the subject incident. Counsel continues, "the tenants at the time will provide impartial testimony as to any repairs, yard work or other maintenance which may or may not have caused a raised sidewalk flag." Counsel also sets forth a series of questions arising out of Aslam's testimony that he shared joint obligation for maintenance of the Premises, such as whether Aslam monitored maintenance while overseas for 9 years; whether Aslam kept in constant communication with the tenants; whether the tenants mailed Aslam notices, repair statuses and maintenance issues; and what, if anything, the tenants did with the yard, sidewalk or Premises with Aslam's permission. However, the Plaintiff did in fact have an opportunity to depose Aslam and it is unclear to this Court why such questions could not have been asked of Aslam at that time.
In opposition to the proof submitted by the Town, it appears that Plaintiff's counsel raises issue with the fact that Ms. Tarano's search was only limited to three (3) years prior to the date of the accident. Significantly, Plaintiff's counsel does not dispute, and thus concedes, that the Town never received prior written notice of the alleged defective sidewalk condition. Plaintiff's counsel further admits that the mere planting of a curbside tree does not itself constitute an act of affirmative negligence, yet contends that "it is impossible to know the circumstances surrounding the planting of the tree" near the subject Premises "without Plaintiff having the opportunity to depose the tenants that lived at [the Premises] for eight (8) years prior to the accident."
Legal Analysis:
A Court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to summary judgment as a matter of law (Alvarez v. Prospect Hosp., 68 N.Y.2d 320 [1986]). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter, its task is to determine whether or not there exists a genuine issue for trial (Miller v. Journal-News, 211 A.D.2d 626 [2d Dept. 1995]).
Prior written notice of an alleged defect is a necessary prerequisite to imposing liability upon a municipality for an allegedly defective and/or dangerous sidewalk condition (Frullo v. Incorporated Village of Rockville Centre, 274 A.D.2d 499 [2d Dept. 2000]; Brooks v. Village of Babylon, 251 A.D.2d 526 [2d Dept. 1998]). Neither actual nor constructive notice may override the statutory requirement of prior written notice of a sidewalk defect (Amabile v. City of Buffalo, 93 N.Y.2d 471 [1999]). There are only two exceptions to the statutory rule requiring prior written notice, namely where the locality created the defect or hazard through an affirmative act of negligence or where a "special use" confers a special benefit upon the municipality (Id.).
Moreover, "[i]t is well settled that a landowner will not be liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner's premises unless the landowner created the defective condition or caused the defect to occur because of some special use, or unless a statute or ordinance placed the obligation to maintain the sidewalk upon him" (Figueroa v. City of New York, 227 A.D.2d 373 [2d Dept. 1997] [internal quotations omitted], citing Bloch v. Potter, 204 A.D.2d 672, 673 [2d Dept. 1994], quoting Surowiec v. City of New York, 139 A.D.2d 727, 728 [2d Dept. 1988]; see also, Darringer v. Furtsch, 225 A.D.2d 577 [2d Dept. 1996]; Yass v. Deepdale Gardens, 187 A.D.2d 506 [2d Dept. 1992]; Conlon v. Village of Pleasantville, 146 A.D.2d 736, 737 [2d Dept. 1989]).
The validity of provisions imparting liability on the abutting property owner for sidewalk accidents has been upheld by the New York Court of Appeals, (See Hausser v. Giunta, 88 N.Y.2d 449, 454 [1996] ["Municipal Home Rule Law § 11 (1) (j) does not prohibit the transfer of a locality's liability to abutting property owners for injuries sustained due to defective sidewalks"]). In order for a statute, ordinance, or municipal charter to impose liability upon an abutting property owner for injuries caused by its negligence, the language thereof must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he or she will be liable to those who are injured (See Picone v. Schlaich, 245 A.D.2d 555 [2d Dept. 1997]).
In the instant matter, the Town has established its prima facie entitlement to judgment as a matter of law by tendering sufficient admissible evidence that no prior written notice of any defective condition was received regarding the subject sidewalk. The Town also sufficiently demonstrated that it did not cause or create the alleged defective sidewalk condition. It is uncontroverted that the Town never received prior written notice, nor did it derive a special use from the sidewalk. There is also no proof that the Town caused or created the alleged defective condition. Accordingly, the burden shifts to the Plaintiff to lay bare her proof to raise an issue of fact.
The Court similarly finds that the Defendant, Aslam, met his prima facie burden entitling him to judgment as a matter of law by submitted sufficient evidence that he did not cause or create the alleged defective sidewalk condition. Further, it is uncontroverted that the Town Code does not impose tort liability to abutting landowners for injuries caused by the failure to maintain or repair an adjacent sidewalk. As such, the burden shifts to the Plaintiff to raise an issue of fact.
The contentions raised by the Plaintiff in opposition and the arguments proffered in support of the cross-motion to compel do not warrant denial of the Defendants' respective motions. In this regard, the Plaintiff fails to set forth anything more than mere conjecture and speculation regarding the proposed testimony of the two nonparty witnesses as it relates to any applicable exception. It is well-settled that general allegations and mere conclusions unsupported by competent evidence are insufficient to defeat a motion for summary judgment. Contrary to Plaintiff's contentions, in the absence of admissible evidence establishing that a particular defendant performed a repair, it is insufficient to raise a triable issue of fact when based entirely upon conjecture and surmise that a particular defendant must have negligently repaired the sidewalk (Meyer v Guinta, 262 A.D.2d 463 [2d Dept. 1999]; Patti v Town of North Hempstead, 23 A.D.3d 362 [2d Dept. 2006]).
Despite the Plaintiff's feeble attempt to use the tenants' unknown testimony as a basis for denying the motions as premature, the Court is unpersuaded that the depositions of the nonparty witnesses, even if compelled to appear, would uncover any material information. That is, the arguments advanced by Plaintiff confirms that it is nothing more than a mere fishing expedition. Not one scintilla of proof is proffered by the Plaintiff to demonstrate that the tenants' testimony would uncover any material facts relating to notice, the cause and create exception, or any other material issue that would warrant denial of the Defendants' respective motions.
Accordingly, it is hereby
ORDERED, that the motion (Seq. 02) by the Defendant, TOWN OF HEMPSTEAD, seeking an Order, pursuant to CPLR § 3212, granting it summary judgment, is GRANTED; and it is further
ORDERED, that the motion (Seq. 03) by the Defendant, MOHAMMED A. ASLAM, seeking an Order, pursuant to CPLR § 3212, granting him summary judgment, is GRANTED; and it is further
ORDERED, that the cross-motion (Seq. 04) by the Plaintiff, seeking an Order compelling the depositions of two nonparty witnesses, is DENIED, and the Complaint is hereby DISMISSED in its entirety.
This decision constitutes the order of the Court.