Argus v County of Nassau

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Argus v County of Nassau 2012 NY Slip Op 30254(U) January 23, 2012 Sup Ct, Nassau County Docket Number: 16549/10 Judge: Thomas P. Phelan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] bL/1t1 SHORT FORM ORDER STATE OF NEW YORK SUPREME COURT Present: HON. THOMAS P. PHELAN. Justice TRIAL/IAS PART 2 NASSAU COUNTY LINDA ARGUS and RICHARD ARGUS, Plaintiff( s ), ORIGINAL RETURN DATE: 11/23/2011 SUBMISSION DATE: 11/28/2011 INDEX No. : 16549/10 -against - COUNTY OF NASSAU and TOWN OF HEMPSTEAD MOTION SEQUENCE #3 Defendant( s). The following papers read on this motion: Notice of Motion...... Reply Affrmation in Support................................ Affrmation in Opposition.. . Motion by defendant , County of Nassau (" County" ), for an Order granting summar judgment pursuant to CPLR 3212 dismissing plaintiffs ' complaint is granted. This motion arises from an underlying personal injury action wherein plaintiff Linda Argus , alleges that she sustained injuries on March 26 , 2010 , after she trpped and fell on a walkway at Nassau Veterans Memorial Coliseum (the Coliseum ), which was owned by the County. According to plaintiff, the walkway was uneven , depressed and irregular , which ultimately caused a height differential to exist , causing a dangerous and hazardous condition. It is alleged that the defendant County had constrctive and actual knowledge or created the condition. Plaintiff's husband , Richard Argus , claims loss of his wife s services as a result of her injuries. Plaintiff, in September 2011 , at the deposition testimony of the defendant' witness , discovered that the County had leased the Coliseum to SMG Facility Management Corporation (" SMG" ) and filed a separate cause of action against it in October , 2011. At all times referred to herein , the Coliseum was leased to SMG pursuant to a lease agreement. [* 2] RE: ARGUS v. COUNTY OF NASSAU and TOWN OF HEMPSTEAD Page 2. Defendant argues that the County had no prior written notice of any defective condition as required by its Administrative Code , and plaintiff has failed to allege facts sufficient to indicate that exceptions to the Code, that the County created the alleged defective condition or that the defect in the sidewalk created a " special use " applied to the instant case. Defendant submits as supporting evidence: copies of the pleadings; an affidavit from Diane Palser of the County' s Bureau of Claims Management; and transcript of the deposition of John Reardon , the County' Acting Masonr Supervisor. Plaintiff argues that she first leared of the lease agreement between the County and SMG , by way of Reardon s deposition in September 2011. Additionally, at the time of the instant motion , SMG was not served nor did it receive any notice of the pending action against it. Because the County had not provided information regarding the agreement , and SMG had not joined issue , it cannot be clearly ascertained as to whether the County actually had wrtten notice of the dangerous condition or whether it created the condition. In addition to the pleadings already submitted by defendant , plaintiffs submit deposition transcript of plaintiff, Linda Argus. The standards for summary judgment are well settled. A Court may grant summar judgment where there is no genuine issue of a material fact and the moving par is , therefore, entitled to summary judgment as a matter of law (Alvarez v. Prospect Hosp. , 68 NY2d 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 determnation as to the trth of the matter; its task is to determne Journal-News, 211 whether or not there exists a genuine issue for AD2d 626 (2nd Dept. 1995)). tral The burden on the (Miller v. par moving for summar judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to Gervasio 81 NY2d 1062 (1993)). Once this initial burden has been met by movant , the burden shifts to the part opposing the motion to submit evidentiary proof in admissible form sufficient to create material issues of fact requiring a tral to resolve. demonstrate the absence of a material issue of fact (Ayotte v. Generally, a defendant who moves for summar judgment in a slip-and- fall case has the initial burden of making a prima facie case that it neither created the hazardous condition nor had actual or constrctive notice of its existence for a [* 3] RE: Page 3. ARGUS v. COUNTY OF NASSAU and TOWN OF HEMPSTEAD Costco sufficient length of time to discover and remedy it" Wholesale Corp. 49 AD3d 522 (2 Dept 2008)). However , in cases where the defendant is a municipality and such municipality has adopted a prior written notice law , it cannot be held liable for injuries sustained as a result of an alleged defect on its propert, absent the requisite notice, unless an exception to the notice requirement applies (Danis v. Incorporated Village of Atlantic Beach , 74 AD3d 1273 (2 Dept 2010)). Two exceptions have been recognized to prior wrtten notice rules. The first is when the municipality has created the dangerous or defective condition through affirmative acts of negligence. The second exception is when a " special use 66 AD3d 719 ( 2 Dept 2009)). (see Sloane v. Abano " confers a benefit upon the municipality ( see Suffolk County Community College Here , the relevant provisions are set forth in 9 12- 0(e) of the Nassau County Admnistrative Code which provides in relevant part: No civil action shall be maintained against the County for damages ro injuries to person or propert sustained by reason of any sidewalk,... parking field walkway,... being defective , out of repair , unsafe , dangerous , or obstrcted... regardless of whether such facility be one as defined by this title or one constrcted pursuant to the provisions of aricle six of the highway law or one constrcted by the State and maintained by the County, unless such sidewalk parking field ,... walkway,... was constrcted by the County or by the State or under a permt issued by the County or by the State , and unless written notice of such defective, unsafe, dangerous or obstructed condition of such sidewalk,... parking field ,... walkway,... was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect danger or obstrction complained of.. or to make the place otherwise reasonably safe. Such written notice shall specify the paricular place and natue of such defective , unsafe , dangerous or obstrcted condition.... Notice required to be given as herein provided shall be made in wrting by certified or registered mail directed to the Office ofthe County Attorney, One West Street Mineola , New York 11501. (emphasis added). The County, by Ms. Palser , established , prima facie , that it did not have prior wrtten notice of any defective or dangerous condition existing in the Coliseum walkways or parking 10ts. The affidavit of an official charged with the responsibility of keeping an indexed record of all notices of defective conditions [* 4] RE: Page 4. ARGUS v. COUNTY OF NASSAU and TOWN OF HEMPSTEAD received by the County is sufficient to establish that no prior wrtten notice was filed. The affidavit need only indicate that the official has caused a search of the deparent' s records to be made and that no wrtten notice of the defective City of New York 218 AD2d 546 (1st Dept 1995)). Furher , the County further established its entitlement to judgment as a matter of law by the testimony of Mr. Reardon , who testified that he received no Sachs work orders for repairs regarding the paricular strctures in question 60 AD3d 1032 (2 Dept 2009)). As such , defendant has met its burden for summary judgment. Cruz condition was found (see v. ( see v. County of Nassau, The burden now shifts to plaintiff to submit evidence sufficient to establish an issue of fact requiring a trial (CPLR 3212(b)). Plaintiff does not submit any evidence or argue that there is a question of fact on whether wrtten notice was provided and does not raise an issue of fact on any exceptions to the wrtten notice requirement. Instead plaintiff opposes this summary judgment motion by arguing that the County failed to reveal information regarding its lease with SMG. As such , SMG was not a part in the initial action and consequently, additional facts may uncover that the County did have written notice of or created the hazardous condition. In sum , it would be premature to grant the County' s motion at this time. par who claims ignorance of critical facts to defeat a motion for summary judgment must first demonstrate that " the ignorance is unavoidable " and that reasonable attempts were made to discover the facts which give rise to a trable 105 AD2d 621 (pt Dept 1984)). Here , plaintiff failed to indicate whether any efforts were made to discover the identity of the issue (see v. Lo Breglio part responsible Marks, v. Kenworthy for the maintenance of said premises (see Town of 116 AD2d 628 (2 Dept 1986)). Oyster Bay, In sum, the summary judgment is the procedural equivalent of tral , with both paries required to lay bare their proof, and therefore a " shadowy semblance of an 105 AD2d 621 issue is not enough to defeat the motion. 10 Misc2d 659 660 , (Sup. (1st Dept be granted where it Ct. New York County (1945)). Summary appears that the part defending against the motion has made no reasonable Providence st Hoffman Washington Ins. Co. 28 AD2d 279 (1 v. (Lo Breglio 1984) v. citing Hanrog Distr. Corp. Hanioti, judgment attempt to ascertain the facts (see Marks, Paul Tausig Dept 1967), must Son, Inc. v. Cadle Company v. -- . y./ [* 5] RE: ARGUS v. COUNY OF NASSAU and TOWN OF HEMPSTEAD Page 5. 237 AD2d 555 (2 Dept 1997)). Lease agreements between the County and tenants are a matter of public record and plaintiffs ' asserted ignorance of the its existence has not been shown to be unavoidable. In addition , plaintiff failed to show that they took reasonable means to discover the actual entity that actually controlled and maintained the Coliseum Marks supra). and its grounds ( see LoBreglio v. In light of the foregoing, plaintiffs failed to meet their burden. Accordingly, defendant' s the County motion is granted , and plaintiffs complaint is dismissed. This decision constitutes the order of the court. HON THOMS P. PHLAN Dated: /V--- ENTERED JAN 25 2012 NASSAU COUNTY COUN CLIRK" Attorneys of Record Siben & Siben , LLP Att: Richard F. Simmons , Esq. Attorneys for Plaintiffs 90 East Main Street Bay Shore , NY 11706 John Ciampoli , Esq. County Attorney of Nassau County Att: Bar M. Dennis , Deputy County Attorney Attorneys for Defendant County of Nassau One West Street . Mineola, NY 11501 Joseph 1. Ra , Esq. Town Attorney OFFtCE xxx [* 6] RE: ARGUS v. COUNTY OF NASSAU and TOWN OF HEMPSTEAD Town of Hempstead One Washington Street Hempstead , NY 11550 Page 6.

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