Oraa v Town of Brookhaven

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Oraa v Town of Brookhaven 2012 NY Slip Op 30448(U) February 6, 2012 Sup Ct, Suffolk County Docket Number: 20346/2009 Judge: William B. Rebolini 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] Shon Form Order SUPREME COURT - STATE OF NEW YORK lAS. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Margaret Oraa, Index No.: 20346/2009 Plaintiff, -against- Attorneys [See Rider Annexed-] Motion Sequence No.: 002; MD Motion Dale: 7/21/11 Submitted: 11/10/11 The Town of Brookhaven, The County of Suffolk and Sun Enterprises, LLC Defendants. Motion Sequence No.: 003; MG Motion Date: 1O/11!11 Submitted: 11/10111 Motion Sequence No.: 004: MG MOlion Date: 10/27111 Submitted: 11I101J I Upon the following papers numbered 1 to 78 read upon these motions for summary judgment: Notice of Motion and supporting papers, 1 - 13; 40 - 48; 66 - 76; Answenng Affidavits and SupP0l1ing papers, 14 - 32; 49 - 63; Replying Affidavits and suppOlting papers, 33 - 34; 64 ~65; 77 - 78: Other, 35 - 39. This is an action to recover damages for personal injuries ullegedly sustuined by the plaintiff when she tripped and fell in a hole in the seam of a concrete slab and the public sidewulk located on the northern side of Montauk Highway next to the Lighthouse Commons Shopping Mall in Shirley. New York. The plaintiff commenced this action agall1st the County of Suffolk ("the County"), the Town of Brookhaven ("the Town") and Sun Enterpnscs, LLC ("Sun Enterpnses"). In the COl1lplal11t the bJlI of parricul:lrs, the plamlill alleges that the dcl"endants were and negllgent!Il, illler aba, failing to properly maintain the subject premises and permittrng the concrcte slab to become and remain in a dangerous, unsafe and hazardous condition. [* 2] Oraa v. '1'0\\'11 of RmokhaV('ll, et Index No.: 20,~46/2009 Page 2 al. 111 their answers. the defendants each assen crossclaims against onc anothcr for contnbution. In addition. Sun Enterprises assel1s a cross claim against its co-defendants for common-law indeml1ifieat ion. The defendants each now separately move for summary judgment. Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see, Rotuba Extruders. Inc. v. CeDpos, 46 NY2d 223 [1978J; Andre v. Pomerov, 35 NY2d 361 [1974]). It is well settled that thc proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendenng sufficient proof 10demonstrate the absence of any material issues of fact (see, Alvarez v. ProspeCi Hasp .. 68 NY2d 320. 324 11986 J). Fai lure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see, Wine!?rad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985 J). Further, the credibility of the panics is not an appropliate consideration for the Coun (see, S.l. Capel in Assoc .. Inc. v. Globe Mfg:.Com., 34 NY2d 338 [1974]), and all competent eVidence must be viewed in a light most favorable to the party opposing summary Judgment (see, Benincasa v. Garrubbo, J41 AD2d 636, 637 [2M Dept., 1988]). Once apri/llllIlICic shOWing has been made. the burdcn shifts to the pany opposing the summary judgment motion to produce evidence sufficient to establish the eXIstence of a matenal issue of fact (see, Alvarez v. Prospect Hosp .. 68 NY2d 320, 314 [1986]). Since a finding of negligence must be based on the breach of a duty, a threshold '-jucstion in tort cases ISwhether the tortfeasor owed a duty of care to the injured party (see, Espinal v. Melville Snow ContTs., 98 NY2d 136 [2002]). "The law imposes a duty to maintam propeny free and clear of dangerous or defective conditions only upon those who own, occupy, or conLrol properly, ur whu put the property to a special use or denve a special benefit from it" (Segura v. City llj' New York, 70 ADJd 670, 670 [2"J Dept., 2010,J lintcrnaJ quotatton marKs omitted]). Here, ill response to Sun Enterprises' prilllo./ilcie showing Lhat it did not own, llCCUpy,or have spcciul use ur the propel1'y where the accident occurred, the plai !llifr cst,lbllShcd, through the submiSSIOnor an affidavit from John Robinson, a lJcenseu professional Ic1ndsurveyor, the eXIstence or Cl triable Issue of fact us to whether Sun Enterpriscs owncd Lhcproperty and, ,-lS a result, owed her a duty of care (see, Zuckerman v. CilV orNew York, 49 NY2d 557 [1980]). In hiS 'lllidavit. Rubinson states that after revlewlIlg J copy of thc deed, the phutugraphs marked by the pJa111tiff t hcr deposition, and three sets of plans for the property, and aftcr observlllg the a aCCident sitc. iLwas his profeSSIOnal0p11110nhat the area where thc plumtiff fell straddled the t properLy line hetwcen the land owned by Sun En!.ellmses and Montauk Highway. He noled thill the concretc slab was pa11of a former dnveway between the shopping centcr's parking lot and MUlHauk Hig.hway. According.ly. Sun Enlerprises' motion for summary judgment ISdellled. With respect to the Town's and the County's motions for sUlllmary judgmenl, Brookhaven TO\I./11 ode ~84-1 provides [hat the Town cannot be held liable as a maHer of law C for personal injuries sustained as a result of any defective. out of repair, unsafe, dangerous or [* 3] Oraa v. Town of Brookhavcn, Index No.: 20346/2009 Page .' ct al. obstructed condition of any highway or street "unless, previous to the occunence resulting III such damages or Injuries, written notIce of such defective, out-of-repalr, uns~lfe, dangerous or obstructed condition, specifying the particular place and location was actually given to the Town Clerk .. and there was a failure or neglect wlthlll a reasonable time. after the giving of such notice, to repaIr or remove the defect, danger or obstruction wmplained of': Suffolk County Chalter §C8-2A provides thai the County cannot be held liable as a malleI' of law for personal injulies sustained as a result of any defeclive, out of repair, unsafe, dangerous or obstruc(ed condition of any highway, road, street, elc. "unless Ihe Counly hus received \Vlincn notice within a reasonable time before said inJury ... was sustained." There arc only two exceptions 10 the plioI' wlitten notice requIrement, to wit, "where the locality created the defecl or hazard through an affirmative aCIof negligence ... and where a specIal use confers a special benefit upon [he loca1Jty" (Amabile v. City of Buffalo, 93 NY2d 471, 474 [1999"] nnte1l1al citations and quotation marks omitted"]). The Town and the County established their prima facie entitlement Lasummary judgmcnt as a matter or law Lhrough the submission of the affidavits of Suzannc Mauro, a principal clerk employed by the Town's highway depmtment, Linda Sullivan, u clerk Lypist employed Il1Lhe Town Clerk's office. Richard Bloch, an investigator employed by the Suffolk County Attorney's office. and Renee Ortiz, Chief Deputy Clerk of the Suffolk County Legislature, in which they stated that they conducted a search of the records and files maintained by their respective offices and found no records indicating that the Town or the County had received prior written notice of the alleged defective condition located in the seam of the concrete slab and sidewalk where the plallltiff's accident OCCUlTed (see, Politis v. Town orIslip, 81 AD3d 1191 [2"d Dept., 20111 McCarthy v. City of White Plains, 54 AD3d 828 12,,<1 Dept., 2008J). In OpposItIon, the plainlitTfmlcd to establish the existence of a tnable issue of fact as [0 \vherhcr there was such prior writtcn notice or as to whether one of the two cxeepti()IlS to the prior writtcn notice requirement appiJcd (sce, Amabilc v. City of BlllTulo, 9::; NY2d 471 [1999J: Politis v. Town of Islip, 82 ;\D3d 1191 [21\<1 Dept., 2011]. McCarthv v_eitv of White Plains, S4 AD3d 828 12"d Dept., 2008J). Accordingly, the Town's and the County's motions for summary Judgment arc granted. Since thIS finding defeats the crossclaims for common-law indemnification and contribution agains[ the Counly, they arc also dismissed (~, Stone v_ WJlllams. 64 NY2d 639 r1984f). Accordingly. it is IS OHDERED that these motions are consolidated for purposes of this dcLermination; <Indi[ furthcl- OHDERED that the motion by defendant Sun Enterprises, LLC for all urdcr pursu:lll1 [0 CPLR 3212 granting summary judgment dismissing the complaint and cross clai ms asscrled agallls[ ][ is denlcd: and II is fUJ1her [* 4] Onlll v. Town of Brookhavell. et al. lurle'\: No.: 20346/2009 flag(' -I ORDERED that the motion by defendant The Town of Brookhaven to CPLR 3] I] granting summary judgmcm is granted: and it is fUl1hcr dismisslllg the cornplainllllsofar for an order pursuant as asscl1ed againsl it ORDERED that the morion by defendant The County of Suffolk for an order pursuant CPI.R 3::211 graming summary Judgment dismissing the complaint and cross claims asserted against il is granted: and it is further ORDEREI) that the claims as to which summary judgment was granted are herehy severed and that thl: remaming claims shall continue (see CPLR *3212 (el flJ). Daled : /~ I) (/ 11 11~4&fv~ HON. WILLIAM B. REBOLlNI, J.s.C. FINAL DISPOSITION x NON-FINAL IlISI'OSITI(lN 10 [* 5] RIDER Aflame\, for Plaintiff: Clerk of the Coun The Jacob D. Fuchsbcrg Law Firm, LLP 500 Fi fth A venue, 45[h Floor New York. New Vork 10 110 Attolllcv for Defendant The Town of Brookhaven: Sunshine & Feinstein. LLP 666 Old Coumry Road. Suite 605 Garden City, New York 11530 Arrome\' for Defendant The County of Suffolk: Chlistine Malafi, Esq. Suffolk County Anomey 100 Veterans Memorial Highway, Hauppauge, New York 11788 AlIOll1CV for Defendant P.O. Box 6100 Sun Enterprises. Andrea Ci. Sawyers 3 IluntinglOll Quadrangle. SUIte 1025 P.O. Box 9028 Melville, New York l.l747 LLC:

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