Godino v Kipel Assoc., Inc.

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Godino v Kipel Assoc., Inc. 2012 NY Slip Op 30738(U) March 14, 2012 Supreme Court, Nassau County Docket Number: 10566/08 Judge: Anthony L. Parga 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] SHORT FORM ORDER SUPREME COURT- NEW YORK STATE- NASSAU COUNTY PRESENT: HON. ANTHONY L. PARGA JUSTICE GIZAZIO GODINO and PIETFtO GODINO Plaintiff: -against- KIPEL ASSOCIATES , INC. , DUNKIN' DONUTS INC. , DUNKIN BRANDS , INC. , THE COUNTY OF Nl\SSl\U , THE TOWN OF HEMf'STEl\D FRANKLIN SQUl\RE DONUT SYSTEM , LLC and DB REl\L ESTl\ TE l\SSETS I , LLC f'l\Ftl' 6 INDE)( NO. 0566/08 XXX MOTION Dl\TE: 01/25/12 SEQUENCE NO. 004 005 006 Defendants. Notice of Motion , l\fTs. & Exs.. ...... """ Notice of Motion, l\ffs. & Exs.............................. ............................................................ Notice of Motion , l\fTs. & Exs.......................................................................................... l\ftirmation in Opposition & Exs"""'''''''''''''''''''''''''....................................................... l\tlrmation in Opposition""""""""""""""""""""""""""""""""""""""",,'................ Reply l\ffirmation.............................................................................................................. I Aff I Aff ep y Innatlon................. .......... ep y lrmatlon.............................................................................................................. Upon the tCJregoing papers , the motions by defendants Dunkin ' Donuts , Inc. , Dunkin Brands , Inc. , Franklin Square Donut System , Inc. and DB Real Estate l\ssets I , LLC (Seq. 004), defendant Kipel Associates , Inc. (Seq. 005), and defendant County of Nassau (Seq. 0(6), for summary judgment , pursuant to Cf'LR *3212 , are each granted. This is an action brought by plaintiff for personal injuries allegedly sustained on l\pril 6 2007 , as a result of a trip and fall on the sidewalk abutting 595 Franklin l\ venue , Franklin Square , New York , approximately five feet from the intersection of Ferngate Drive. Plaintiff alleges that she tripped on a defcctive sidewalk slab , which included within its surface , a [* 2] manhole cover. It is alleged inter alia that the defendants were negligent in causing, and/or permitting a dangerous , hazardous , and unsafe condition to exist on said sidewalk. To begin , defendants Dunkin Donuts , Inc. , Dunkin Brands , Inc. , Franklin Square Donut System , LLC and DB Real Estate l\ssets I , LLC (collectively the " Dunkin defendants ) move for summary judgment on liability grounds , contending, inter alia that they cannot be held liable herein as they did not have a statutory duty to maintain the sidewalk , they neither had constructi ve n01 actual notice of the alleged defect , they did not cause or create the defect , they did not negligently make any repairs to the sidewalk , and they did not make any special use ofthe sidewalk at issue. In support of their motion , the Dunkin defendants submit the plaintiff's bill of particulars , photographs of the accident location , the deposition transcripts of both plaintitIs , the deposition transcript ofKipel l\ssociates , Inc.'s witness , Matthew King, the deposition transcript of Franklin Square Donut System , LLC's witness , David Jablon , the deposition transcript ofthe Town of Hempstead' s witness , l\ndrew Brust , as well as an affidavit executed by l\ndrew Brust the deposition transcript of the County of Nassau s witness , l\ndrew Petti , and the Dunkin defendants ' responses to plaintiff's first set of interrogatories. Ddendant Kipel Associates , LLC (hereinafter " Kipel" ) also moves for summary judgment similarly arguing that it did not have a statutory duty to maintain the sidewalk, it neither had constructive nor actual notice of the alleged detect , it did not cause or create the ddect , it did not negligently make any repairs to the sidewalk , and it did not make any special use of the sidewalk at issue. In support of its motion , Kipel submits plaintifl's bill ofpa11iculars photographs of the accident location , a copy of the lease agreement for the premises , the deposition transcripts of the plaintiffs , the deposition transcript of KipeI Associates , Inc. witness , Matthew King, and the deposition transcript of the County of Nassau s witness , l\ndrew Petti. Franklin Square Donut System , LLC (hereinafter " Franklin Donut" ) is a tenant at the subject premises located at 595 Franlkin l\ venue , Franklin Square , New York. Defendant Kipel is the owner of said premises. Plaintiff alleges that the sidewalk where she fell abuts the subject premises. David Joblon is the principal of Franklin Donut and testified at behalf Mr. Jablon a deposition on its testified that Franklin Donut did not maintain or make any repairs to the [* 3] sidewalk abutting the subject premises , nor is he aware of any other entity making repairs to said sidewalk. He also testified that Franklin Donuts did not rcceivc any complaints regarding the subject sidewalk prior to plaintiff's accident. Mr. Jablon further testified that hc did not walk on the subjcct sidewalk as he would park his car in the parking lot and walk to the store from the lot where he parked his car. l\s such , Mr. Jablon did not have notice of the alleged detective condition which caused the plaintiff's fall. In addition , Mr. Jablon testified that he never made any complaints to the County of Nassau about the sidewalk , never received any complaints about the sidewalk Ii' om anyone , and never received any noticcs ham the County to repair the sidewalk. Dunkin Donuts , Inc. Dunkin Brands , Inc. and DB Real Estate Assets I , LLC also indicated within their Response to F'laintiff' s First Set ofInterrogatories that they did not repair or maintain the exterior portion of the premises , including the sidewalks and walkways , that they did not receive any complaints regarding the condition of the premises in 2006 and 2007 , and that they did not receive any notice rcgarding the sidewalk from any municipal agcncy. Further Dunkin Donuts , Inc. , Dunkin Brands , Inc. and DB Real Estate l\ssets I , LLC were not present at the subject location and did not conduct any physical inspections of the premises. Additionally, there is no evidence that any ofthe Dunkin defendants made special use of the sidewalk at issue. Further , the County of Nassau s witness , Highway Maintenance Supervis01 , l\ndrew Petti , testified that the sidewalk in question is within the jurisdiction of the County of Nassau and that the abutting property owner would not be permitted to perform any repairs on the subject sidewalk flagstone slab since , unlike other sidewalk slabs , this slab has a Nassau County drain box in it and only Nassau County would have pcrmission to make any repairs to it. Mr. Petti further tcstified that there was no prior written notice received by the County of Nassau regarding the subject defect. Further , l\ndrew Burst , a Sidewalk Inspector tor the Town of Hempstcad , also testified that the Town had no prior written notice or prior notice related to the sidewalk abutting 595 Franlkin l\ venue. Matthew King, Managing l\gcnt for Kipcl testified at a deposition that Kipel never made any repairs to the sidewalk , did not create the allegedly defective condition , did not reccive notice of any detective condition on the sidewalk prior to plaintiff's accident , and had no duty to maintain the premises under the lease agreement. There is also no evidence that Kipel made [* 4] special use ofthe sidewalk. Further , the lease agreement excludes Kipel from responsibility related to the premises other than coUecting rent. The Dunkin defendants and detendant Kipel have both made prima htcie showings of entitlement to summary judgment on liability grounds. l\n abutting landowner wiU not be liable to a pedestrian injured as a result of a defect on a public sidewalk unless the landowner created the detective condition or caused the defect to occur because of some special use ofthe sidewalk or if a local ordinance or statute specifically charges the abutting landowner with a duty to maintain and repair the sidewalks and imposes liability for injuries resulting from a breach of that duty. (Jacobs v. Vilage ( lRockvile Centre 41 AD. 3d 539 , 838 N. 2d 597 (2c1 Dept. 2(07); Felyhherg v. Emmons Ave. Hmpitality Corp. 26 AD. 3d 460 810 N. Y. 2d 502 (2d Dept. 2006); Hausser v. Guinta 88 N. Y.2d 449 , 669 N. 2d 98 (2d Dept. 2003); 2d 470 (1996); Diaz v. Vieni 303 AD. 2d see also, Dufrane v. Rohideau 214 AD. 2d 758 713 913 , 626 N. 2d 292 (3d Dept. I (95)(an exception to the prohibition against liability upon an abutting landowner may be incurred where a statute spccifieally charges an abutting landowner with a duty to maintain and repair the sidewalk and provides that a brcach ofthat duty will result in liability). Where a local ordinancc imposes upon the landowner a duty to maintain the sidewalk , but docs not expressly impose tort liability upon the landowner for a violation of that duty, the landowner owes no duty to the plaintiff to keep the sidewalk in good repair and cannot be subject to tort liability for any aUeged breach of such a duty, where the landowner neither created the condition (Forell v. Rugino , 139 nor caused the deJect to occur by some special use of the sidewalk. AD. 2d 489 526 N. AD. 2d 414 N. 904 , 2d 847 (2d Dept. 1988); ee also , Lodato v. Town ( lOyster Bay, 69 S.2d 214 (2d Dept. 1979)). In the Ilstanl matter , the Town of Hempstead Code * 181- , which is the controlling local ordinance herein , does not impose tort liability on adjoining landowners for claims for damages or injuries that arise from detects in the sidewalk. (See , Marx v. Great Neck Park District , 29 Misc. 3d I217(A), 2010 WL 4273810 (Sup. Ct. Nassau Cty. 2(10)). l\s the ' fawn Code does not place lort liability upon abutting landowners , the abutting landowner may only be held liable tor injurics to pcdestrians if it can be established that the landowner caused 01 condition in the sidewalk or caused the condition through a special use ofthc sidewalk. created the defective (lei , see [* 5] a/so , Fe/shberg v. t:mmons Ave. Hospitality Corp. 26 A.D. 3d 460 2(06); Roark v. Hunting, 810 N. S.2d 502 (2d Dept. 24 N. Y.2d 470 248 N. 2d 896 (1969)). There is no evidence in the submissions bef(wc this Court that any of the defendants caused or created the alleged detective condition in the sidewalk at issue or caused the condition through a special use of the sidewalk. The proponent of a summary judgement motion " must make a prima f lcie showing of entitlement to judgment as a matter of law , tendering sufficient evidence to demonstrate the 2d 320 (Ct. ofApp. 1986)). Once the movant has demonstrated a prima facie showing of entitlement to judgement absence of any material issues of fact." 68 N. (Alvarez v. Prospect Ho,W, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible f01m sullicient to establish the existence of material issues of a fact which require a trial of the action. (Zuckerman v. City of New York 49 N. Y.2d 557 (Ct. of App. 1980)). In opposition to the motions brought by the Dunkin defendants and defendant Kipel , the plaintill has failed to demonstrate the existence of a triable issue of fact sufficient to defeat said defendants ' prima facie showing of entitlement to summary judgment. There is no evidcnce that the Dunkin detendants or defendant Kipel caused or created the condition or used the sidewalk for a special use. In addition , although plaintiff contends that the lease agreement required the tenant to keep the premises is good order , repair and condition , there is nothing in the lease that states that the abutting sidewalk is part of the premises. In addition , even if there was such an obligation to maintain the sidewalk within the lease , it is well setted that a contractual obligation , even if breached , will only give rise to a duty to non-contracting third parties in three limited si tuations: " ( 1) where the contracting party, in f liling to exercise reasonable care in the performance of his or her duties , launcher sJ a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party s duties and (3) where the contracting party has entirely displaced the other party s duty to maintain the premises safely. (&pinal v. Melvile Snow Conslrs. 98 N. Y.2d 136 , DormiloryAuth. (d'S/ate of New York 43 A.D. 3d 746 N. 2d 120 (2002); Cadani S.2d 709 (3d Dept. 2(07)). There is no evidence that any ofthe three situations exist here. Further , the County witness 1218 841 N. Andrew Petti , testified that the only entity who would be permitted to make repairs to the sidewalk nag at issue would be the County of Nassau. [* 6] In addition , there is no evidence that the Dunkin defendants or defendant l(ipel made special use of the sidewalk. Plaintiff contends that the sidewalk slab where the plaintiff feU abuts a driveway apron to the Dunkin Donuts ' parking lot , however , the plaintiff was not caused to tall by a defect in the driveway apron or driveway, and there is no evidence that the sidewalk slab where the plainti If fell was put to any special use whatsoever. There is no structure driveway, entrance , , such as a or walkway present at the location where plaintifJ fcU , nor is there any evidence of special use by the Dunkin defendants or Kipel. Accordingly, the motions by the Dunkin defendants and by defendant Kipel for summary judgment are granted. Plaintiffs complaint , together with all cross-claims , are dismissed as against the Dunkin defendants and defendant Kipel. Lastly, thc County of Nassau also moves !()r summary judgment on liability grounds as the County never received prior written noticc of the defect at issue herein. In support of its motion , the County submits the deposition transcript of Highway Maintenance Supervisor l\ndrew Petti , as well as an affdavit of an employee of the Claims and Investigation Division of the Office of the Nassau County l\ttorney, Veronica Cox. l\s noted supra Mr. Petti testified that the County of Nassau had jurisdiction over the sidewalk at issue and never received any prior written notice of a detect in the sidewalk where the plaintiff tell. Mr. Petti testified that prior to the plaintiffs accident , the County of Nassau did do asphalt repair work to a sidewalk flagstone adjacent to the one which allegedly caused the plaintiffs accident , after a work order request was generated in or around September 2006 , but indicated that the work was unrelatcd to the sidewalk flagstone where the plaintifJ alleges that she teU. In addition , there is no testimony that Mr. F'etti noticed the alleged defect that caused the plaintiff's accident at the time he entered the work request I()r the adjacent sidewalk flagstone , nor is there evidence that the County of Nassau inspected the Ilagstone at issue herein or had notice of the defect that caused plaintiff's accident prior to her accident. Mr. Petti testified that the work done to the adjacent flagstone involved concrete asphalt that was used to shore up the inlet from collapsing inside the catch basin. In addition , County employee Veronica Cox attests that she personally searched the Nassau County files which contain notices of claims and notices of defects for records of prior written notice , which are located at the Otlce of the Nassau County l\ttorney, for a period oftive [* 7] years up to and including the date of plaintiff's accident on l\prij 6 2007. Ms. Cox attests that there were no records of any prior written notices of claims and/or prior written complaints invol ving a dctecti ve condition at the location of plaintiff's accident. 0(e) of the l\dministrative Code of Nassau County provides that no civil Section 12- action may be maintained against the County of Nassau for damages or injuries to persons sustained by reason of a detective highway, street or sidewalk unless written noticc of the defect was given to the County of Nassau. As the County did not receive prior written notice of the defect , the County contends that it cannot be found liable to the plaintifT for her (Galante v. Vilage ( lSea Cliff; Town ( fHuntington 13 kD. 3d 577 , 787 N. 304 kD. 2d Huntington 12 N. Y.3d 275 513 , 757 N. Y.S. 2d 879 N. Y.S. 2d S.2d 376 (2d Dept. 20(4); inj urics herein. Berner Gorman v. Town ( 585 (2d Dept. 2003); 379 (2009)). The County of Nassau has made a prima facie showing of entitlement to summary judgmcnt on liability grounds. In opposition , plaintiff contends that the County of Nassau had constructive notice of the defeet as they repaired the adjacent flagstone prior to the plaintiff's accident and as Mr. f'ett walked on the sidewalk daily for a period of time to get coffee at Dunkin Donuts. f'laintiff further contends that the manhole and sewer drain/catch basin provided a special use to the County of Nassau. It is undisputed that the County of Nassau did not have prior written notice of the deJect which the plaintiJI alleges caused her f tll. Prior written notice provisions are always strictly construed , and absent prior written notice or a dangcrous or detective condition wherc a written notice statute is in effect , a municipality cannot be held liable o.fNassau 84 kD. 3d 787 , 923 N. Y.S.2d 577 (2d Dept. 2011); lor injuries. (Vardoulias v. County Gorman v. Town o.fHuntington 12 N. Y.3d 275 , 879 N. Y.S.2d 379 (2009)). Since the County did not receive prior written notice of the defect , and as there is no evidenee that the County caused or created the defect through an affirmative act or that there was a " special use " which conferred a special benefit upon the County, the County cannot be f mnd Jiable to the plaintifftor her injuries herein. Vilage of Sea Clfff; 13 kD. 3d 577 Huntington 304 kD. 2d 2d 471 693 N. 513 , 757 N. 787 N. 2d 376 (2d Dept. 2004); S.2d 585 (2d Dept. 2(03); (Galante Berner v. Town of Amabile v. City o.fBtiffctfo , 93 S.2d 77 (1999)). Constructive notice of a defect may not override the . " [* 8] statutory requirement of prior written notice of a sidewalk defect. (Amabile v. City ( N. Y. 2d 471 693 N. V. 2d 77 (1999); Braunstein v. County (?fNassau 294 AD. 2d 2d 565 (2d Dept. 2002)). N. Y. !tj(llo , 93 323 , 741 In addition , the roadway catch basin and manhole cover do not I lll within the special use exception to the prior written notice requirement as there is no evidence that they served a municipal function inuring to the special benefit of the County. 207 AD. 2d (See, Vise v. CountyalSuffolk 341 615 N. 2d 429 (2d Dept. I 994)(the drainage function of the catch basin served to provide for the proper maintenance of a safe roadway and did not serve a municipal function inuring a special benefit to the municipality); 864 N. Obler v. City of New York 8 N. Y. 3d 888 2d 1270 (2007)( even if special use doctrine applied to manhole in city street , there was no evidence that this special use conferred any benefit on the city as would render inapplicable the requirement that the city receive prior written notice of street defects to be made liable lor resulting injuries); Melendez v. City of New York 72 AD. 3d 913 , 898 N. Y. S.2d 868 (2d Dept. 2010)(110 evidence that benefit upon the locality); the manhole cover constituted a " special use " which conferred a special Ramos v. City ( lNew York 55 AD. 3d 896 866 N. 2d 737 (2d Dept. 20(8)(a catch basin does not lall into the special use exception to prior written notice requirement)). the l\ccordingly, defendant County of Nassau s motion for summary judgment is granted and plaintiffs action , together with all crossclaims , is dismissed as against County of Nassau. Dated: March 14 Cc: 2012 !. Matthew G. White , Esq. Walsh Markus McDougal & DeBellis , LLP 229 Seventh Street , Suite 200 Garden City, NY 11530 Fiedelman & McGraw Two Jericho Plaza - Suite 300 Jericho , NY 11753 ENTERED MAR 20 2012 NASSAU COUNTY S OFFICE COUNTY CLERK' [* 9] John Ciampoli , Esq. Nassau County l\ttorney s Office One West Street MineoIa , NY J 150 J fuere T. Rodriguez , Esq. Baxter Smith Tassan & Shapiro , P. 99 North Broadway HicksvilIe , NY 11801

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