Opinion
22556/08.
Decided February 19, 2010.
Raphaelson Levine Law Firm, P.C. — Attorneys for Plaintiff.
John Ciampoli, Esq., Nassau County Attorney — Attorney for County of Nassau.
Joseph J. Ra, Esq., Town Attorney — Attorney for Town of Hempstead.
Richard T. Lau Associates — Attorneys for Albert Shaw Donna Shaw.
RELIEF REQUESTED
The defendant, the County of Nassau, moves for an order pursuant to CPLR § 3212 granting the County of Nassau summary judgment dismissing plaintiff's complaint and any and all cross-claims against the defendant, the County of Nassau. The plaintiff submits opposition. The defendant submits a reply affirmation.
The defendants, Albert Shaw and Donna Shaw, (hereinafter referred to as "Shaw"), cross-move for an order pursuant to CPLR § 3212 granting the defendants summary judgment dismissing plaintiff's complaint and any and all cross-claims against the moving defendants. The plaintiff submits opposition. The defendants submit a reply affirmation.
BACKGROUND
The plaintiff initiated this action for personal injuries sustained on January 19, 2008. Plaintiff claims that he was on his way to his synagogue when he was caused to trip and fall as a result of a cracked and depressed portion of a sidewalk abutting the premises located at 2929 Grand Boulevard, Baldwin, New York. The plaintiff alleges that the dangerous and defective condition, a depressed portion of the sidewalk, had dirt, debris and grass growing on the cracked edges which indicated that it existed for a sufficient period of time to allow vegetation to grow on it.
THE MOTION FOR SUMMARY JUDGMENT SUBMITTED BY THE COUNTY OF NASSAU
The County of Nassau has made a prima facie showing of entitlement to summary judgment, as the County has demonstrated that it did not have prior written notice of the alleged defective condition on the sidewalk. The Nassau County Civil Engineer testified that the County did not receive any prior written notice of the alleged sidewalk defect.
Nassau County Administrative Code § 12-4.0(e) provides as follows:
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 obstructed 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. (emphasis added).
The plaintiff, in opposition, relies on Phillips v. County of Nassau , 50 AD3d 755 , to support plaintiff's contention that the Nassau County Administrative Code § 12-4.0(e) should be construed in accord with Highway Law § 139(2) which allows for tort recovery based on constructive notice where written notice is lacking.
Highway Law § 139(2) provides as follows:
Notwithstanding the provisions of subdivision one of this section, a county may, by local law duly enacted, provide that no civil action shall be maintained against such county for damages or injuries to person or property sustained by reason of any highway, bridge or culvert being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective, unsafe, dangerous or obstructed condition was actually given to the clerk of the governing body or such county of the county highway superintendent; and that there 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, in the absence of such notice, unless such defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the existence of reasonable care and diligence; but no such action shall be maintained for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any highway, bridge, culvert, unless written notice thereof, specifying the particular place, was actually given to the clerk of the governing body of a county or county highway superintendent and there was a failure or neglect to cause such snow or ice to be removed, or to make the place otherwise reasonably safe within a reasonable time after the receipt of such notice. (emphasis added).
Here, the plaintiff contends that the County had constructive notice of the depressed and cracked portion of the sidewalk that caused plaintiff to fall which existed for a sufficient period of time to put the County on notice.
However, simply put, Highway Law § 139(2) makes no express reference to "sidewalks" and therefore, Nassau County Administrative Code § 12-4.0(e) governs the instant matter. ( Zash v. County of Nassau, 171 AD2d 743).
The Second Department in Phillips v. County of Nassau, supra., in holding that Nassau County Administrative Code § 12.4.0(e) should be construed in accord with Highway Law § 139(2), which allows for tort recovery based on constructive notice where written notice is lacking, stated that liability may be imposed upon a county, "even in the absence of prior written notice, for dangerous highway conditions of which the county had constructive notice" (emphasis added). ( Id.) The plaintiff in Phillips claimed that his bicycle tire hit raised concrete mounds located on a public roadway. The Court in Phillips held that the question of whether the county had constructive notice of the roadway defect was a contested factual issue which should have gone to the jury.
The Second Department in Zash v. County of Nassau, supra, rejected plaintiff's contention that the Nassau County Administrative Code § 12-4.0(e) construed with Highway Law § 139(2) allows tort recovery to plaintiff as a result of an alleged defective condition existing on a sidewalk, where prior written notice was lacking. The Court in Zash stated that the Nassau County Administrative Code § 12-4.0(e) "expressly related to sidewalks, curbs or gutters. It made no reference to highways, bridges, or culverts as does Highway Law § 139(2)" (emphasis added). The statute at issue made "a specific reference to sidewalks as distinct from streets or highways. Unlike those provisions, Highway Law § 139(2) makes no specific reference to sidewalks". ( Id.) "The Legislature could have specifically included sidewalks within the classes of defects for which the constructive notice requirement was applicable. It did not." ( Id.) The Court concluded that Nassau County Administrative Code § 12-4.0(e) governed the action in Zash and therefore, the lower court should have granted the county's motion to dismiss for plaintiff's failure to prove prior written notice of the defective sidewalk.
Accordingly, the Nassau County Administrative Code § 12-4.0(e) governs the matter sub judice as plaintiff claims he was caused to fall as a result of a defect on a sidewalk. The defendant, the County of Nassau, has made a prima facie showing of entitlement to summary judgment upon demonstrating that the County did not receive prior written notice of the alleged defect on the sidewalk. The plaintiff, in opposition, has failed to raise a triable issue of fact warranting the denial of this summary judgment motion.
Therefore, the defendant's motion for summary judgment is granted, and plaintiff's complaint, and any and all cross-claims, as and against the County of Nassau, are hereby dismissed.
SHAW'S MOTION FOR SUMMARY JUDGMENT
The Shaw defendants move for summary judgment on the ground that the defendant, Donna Shaw, is merely the owner of the property abutting the sidewalk where the plaintiff sustained an injury as a result of an alleged defective condition on that sidewalk. The defendant, Albert Shaw, has demonstrated that he did not own the property abutting the sidewalk upon which plaintiff fell on.
It is well settled that a public sidewalk is deemed part of a public street or highway, and that the duty to maintain it in a reasonably safe condition generally rests on the municipality and not the abutting landowner. ( Hausser v. Giunta, 88 NY2d 449; Picone v. Schlaich, 245 AD2d 555; Bloch v. Potter, 204 AD2d 673). A landowner will not be liable to a pedestrian injured by a defect in the 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 on the obligation to maintain the sidewalk upon the landowner which makes the landowner liable for injuries occasioned by the failure to perform that duty. ( Bachman v. Town of Hempstead, 245 AD2d 327; Strauss v. Tam Tam, Inc., 231 AD2d 564; Weil v. 227 E. 57th Street, Inc., 223 AD2d 449).
To establish prima facie entitlement to a summary judgment determination in this context, the movant, as an adjoining landowner, must demonstrate that she neither created the defective condition, nor caused its development through a special use of the public way. ( Breger v. City of New York, 297 AD2d 770).
Here, the movant, Donna Shaw, has demonstrated her entitlement to summary judgment as she has demonstrated that she neither created the defective condition, nor caused its development through a special use of the public way. The record reveals that the defendant, Donna Shaw, is not responsible for the maintenance or repair of the public sidewalk, did not create the allegedly dangerous condition of the sidewalk, and did not breach a statutory duty imposing liability upon her for personal injuries sustained as a result of her failure to maintain the sidewalk, as such statute or ordinance does not exist.
The plaintiff has failed to raise a triable issue of fact precluding summary judgment in this matter. The plaintiff's assertion that Donna Shaw could have derived a benefit from the abutting sidewalk is unsubstantiated. Plaintiff's mere assertion that she shoveled the sidewalk to keep it free from ice and snow, and in doing so derived a benefit from the sidewalk, is insufficient to defeat summary judgment. ( Zuckerman v. City of New York, 49 NY2d 557; Mazzaferro v. Barterama Corporation, 218 Ad2d 643).
In light of the foregoing, the motion by the defendants, Shaw, for an order dismissing the plaintiff's complaint, and all cross-claims, as and against the defendants, Albert Shaw and Donna Shaw, is granted.