Epstein v Village of Port Washington N.
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Epstein v Village of Port Washington N. 2012 NY Slip Op 30812(U) March 22, 2012 Supreme Court, Nassau County Docket Number: 19063/10 Judge: Karen V. Murphy 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 - STATE OF NEW YORK TRIAL TERM. PART 11 NASSAU COUNTY PRESENT: Honorable Karen V. Murphv Justice of the Supreme Court GEORGE EPSTEIN and ARLENE EPSTEIN Index No. 19063/10 Plaintiff(s ), -against- Motion Submitted: 1/17/12 Motion Sequence: 001 VILLAGE OF PORT WASHINGTON NORTH, Defendant(s). The following papers read on this motion: Notice of MotionJOrder to Show Cause........................ Answering Papers.......................................................... Reply............................................................................ .. Briefs: Plaintiff slPetitioner ' s........................................ Defendant' s/Respondent' s.................................. Defendant Vilage of Port Washington North ("the Vilage ) moves this Court for an Order granting summary judgment in its favor and dismissing the complaint. Plaintiffs oppose the requested relief. On April 5 , 20 I 0 , plaintiff George Epstein ("plaintiff") tripped and fell on a gap between two slabs (referred to as " flags ) of sidewalk. The accident occurred at approximately 10:30 a. , on a clear , dry day. As a result of the accident , plaintiff claims to have sustained various physical injuries. The Vilage asserts that it is entitled to summary judgment because it did not receive prior written notice of the defect that caused plaintiffs accident and ensuing injuries. [* 2] Plaintiff relies upon a letter written by the propert owner whose propert abuts the sidewalk in question as having provided the required prior written notice. This Court recognizes that summar judgment is a drastic remedy and as such should (Andre 35 N. 2d 361 , 320 N. 2d 853 362 N. 2d 131 (1974)). Summary judgment should only be granted where the court finds as a matter oflaw that there is no genuine issue (Cauthers v. Brite Ideas 41 A. D.3d 755 , 837 N. 2d 594 (2d Dept. , 2007)). The Court' s analysis of the evidence must be viewed in the light most favorable to the non-moving part, herein (Makaj v. Metropolitan Transportation 18 A. 3d 625 , 796 N. 2d 621 (2d Dept. , 2005)). only be granted in the limited circumstances where there are no triable issues of fact. v. Pomeroy, as to any material fact. , LLC, plaintiffs. Authority, A municipality which has enacted a prior written notice statute may not be subjected to liability for personal injuries resulting from an improperly-maintained sidewalk , unless it received actual written notice of the dangerous condition , its affirmative act of negligence proximately caused the accident , or a special use of the sidewalk confers a special benefit to the municipality. (Hampton v. Town of North Hempstead 298 A. 2d 556 , 748 N. 675 (2dDept. Amabile v. City of Buffalo 93 N. 2d 471 , 715 N. E.2d 104 693 2d 77 (1999)). , 2002) citing It is undisputed that prior written notice of a sidewalk .defect is required in order to impose liability upon the Vilage for (CPLR 8 Village of Port Washington North Code, 8143-22). 86personal injuries resulting from said defect 9804; Village Law 628; In support of its motion , the Vilage submits inter alia plaintiff s bil of particulars including photographs , supplemental bil of particulars , the deposition testimony of plaintiff the Village Clerk , and the Vilage s superintendent of public works. The Vilage also submits various photographs of the sidewalk marked during deposition , the letter from the propert owner whose propert abuts the sidewalk , and an affidavit from the Vilage Clerk. of particulars dated December 9 , 2010 , plaintiff states that he was caused to fall and sustain injury because of a " gap " that " exist(s J between the contiguous sections of the sidewalk concrete. " According to plaintiff, the flags were of differing heights. In fact plaintiff characterized the gap between the contiguous sections as "wide " being " between 1 12 to 2 inches. " The height of the raised portion was stated to be 3/4 of an inch. Attached as an exhibit to the bil of particulars is Exhibit G , a collection of five photographs depicting In his bil Plaintiff does not allege a special use of the sidewalk , nor does plaintiff all ge that the Village created the defective condition. [* 3] the " area (ofJ thedangerous , defective and hazardous condition which caused plaintiff to fall and sustain his injuries " (paragraph 11). In looking at those photographs , it is clear to the Court that there is a gap between two flags , with some vegetation growing within the gap. The fifth photo in the series depicts what appears to be the same gap shown in the close-ups , in relation to the private propert and the street. At his deposition , plaintiff testified that he was walking in a southbound direction on SoundviewDrive , approximately five to ten feet from its intersection with Seagull Lane , and approximately fifteen feet past the propert owner s driveway, when he fell. The propert owner s address is 114 Soundview Drive. Plaintiff explained that he had walked past a section of newer concrete , which is light in color , past the driveway, and that he fell on an older , darker section of sidewalk. Plaintiff testified that he fell on the " dark strip, " and not on any defect between an old ahd new flag. At the deposition , he identified the gap that caused his fall by circling the gap in the photograph marked as defendant's Exhibit C (Exhibit H in the instant motion). Plaintiff also identified the gap in relation to the propert owner s driveway, marking defendant' s Exhibit A (Exhibit G in the instant motion) with a circle. The photographs submitted by defendant upon the instant motion clearly depict the as being significantly lighter in color than the older flags. Furthermore , the photographs marked by plaintiff at his deposition and submitted herewith demonstrate that plaintiff fell between two older , darker flags , past the propert owner driveway. newer flags of sidewalk The letter from the propert owner of 114 Soundview Drive is dated August 27 2007. In that letter , the homeowner expressed her desire to install a new driveway, and that the new driveway would extend into the Vilage s sidewalk area to even out the "jagged edge " that exists in that area. The propert owner also requested a new sidewalk to " create an even finished edge " and she states that she may choose belgian (sic) blocks or bricks. Finally, she requested that the Village " have that area (abutting the driveway) replaced along with the other sections you have already marked. Defendant's Exhibit G (Defendant' s A at deposition) clearly depicts the "jagged edge referred to by the propert owner , demonstrating that area to be " abutting the driveway, " as the propert owner states in her letter. It is apparently the area where her asphalt driveway joins the darker flags of the sidewalk. [* 4] In response to the propert owner s letter , the Vilage Clerk , Palma Torrisi , authored a letter to the propert owner , dated August 28 2007. The Vilage s letter acknowledges that the letter served as notice of a defect in the sidewalk at the premises. The Clerk also testified that some sidewalk replacement was done at 114 Soundview Drive , but that she did not know if that work was done..n response to the propert owner s letter. The Vilage s superintendent of public works , Ronald Novinski , testified that the only sidewalks that the Vilage has responsibility to replace/repair are flags that are damaged and/or raised by Vilage trees. Mr. Novinski explained that the Vilage replaced flags at 114 Soundview Drive that were raised up by Vilage tree roots , and that the areas referred to by the propert owner as having been " marked" were the areas affected by Vilage tree roots. Mr. Novinski confirmed that the lighter colored flags depicted in defendant' s photographs are the flags that the Vilage contracted to have replaced because of tree roots. Mr. Novinski also testified that he spoke to the propert owner at or about the time she sent the aforementioned letter to the Vilage. According to Mr. Novinski , the propert owner told him that she was going to replace her driveway, and she complained " about this piece of sidewalk here because she wanted to put a new drive way in " (referring to defendant' s Exhibit G (defendant' s Exhibit A at deposition)). Novinski " told her it would have to be replaced because the edge is all jagged and all the stone is coming up on it , so it's very rough. (Novinski) said while the (sidewalk contractor) is here if you want to have him do it , work a deal out with them and you can do it but it' s not our responsibilty. Based on the foregoing, it is clear to the Court that the written notice of defect supplied to the Vilage related to the jagged edge of the sidewalk abutting the driveway of 114 Soundview Drive , not the gap between sidewalk flags located past the driveway area that plaintiff alleges caused his fall. Thus , the Vilage did not receive prior written notice of the particular defect that (Daniels v. City of New York 2012 N. Y. Slip Op. 322 936 N. 897 (2d Dept. , 2012) (City' s notice of defects in a paricular portion of a crosswalk did not constitute sufficient written notice of defect alleged by plaintiff in a different portion of same crosswalk); Camacho v. City of New York , 218 A. 2d725 , 630 N. 2d 557 (2d Dept. caused plaintiffs fall The Village s letter also advised the property owner that it is her responsibility to maintain and repair the sidewalk abutting her property. Included with the Vilage s letter was an application for a Sidewalk Permit. It is obvious from defendant' s Exhibit G that the property owner did not install a Belgium block or brick driveway. ," [* 5] 1995) (Notation on map regarding raised portion of sidewalk insufficient notice of plaintiff s claim that hole about three feet wide by three feet long and one foot deep actually caused accident)). Accordingly, defendant Vilage has established its prima facie entitlement to summary judgment. In order to overcome the Vilage s summary judgment motion , plaintiffs must raise a triable issue of fact. Plaintiffs have not sustained their burden. In opposition , propert owner of plaintiffs attempt to expand the 2007 written notice made by the 114 Soundview Drive into written notice about the defect that plaintiff George Epstein claims caused the accident giving rise to this action. Plaintiffs have submitted only the deposition testimony of the Vilage s superintendent of public works , Ronald Novinski. Plaintiffs have not submitted the deposition testimony of George Epstein , nor have they submitted the original or supplemental bil ofparticulars. Instead , plaintiff has submitted an affidavit dated January 6 , 2012 , which is not supported by the record , and is , in fact , in contravention to his July 11 , 2011 deposition testimony and the photographic record outlned above. In his affidavit , plaintiff states that his " foot caught on the deteriorated edge ofthe sidewalk slab that abuts that home s driveway as a result of an unreasonably large gap that existed between the sidewalk slabs. " Plaintiff further states I know where and why I fell and I submit that the area complained of in the (propert owner s) written notice letter is the defective section which caused me to fall." Plaintiffs affidavit is also in contravention to his notice of claim and amended notice of claim , which are attached to his opposition papers. In the notice of claim fied on May 5 2010 , plaintiff states that he was caused to trip and fall as a result of " the unreasonable gap. Plaintiff further stated in his notice of claim that he "had passed the driveway of 114 Soundview Drive. . . when his foot was caused to strike a large gap in the sidewalk sections. . . . " In his amended notice of claim fied on June 16 , 2010, plaintiff made the same claims with respect to the alleged defect , and its location relative to the driveway of 114 Soundview Drive. Plaintiffs affidavit also implies that , based on Mr. Novinski' s deposition testimony, to be " the edges between the sidewalk flags had become jagged as a result of ' deterioration. the Vilage had actual notice of the alleged defect stated Following the conclusion of all depositions , plaintiffs served a supplemental bil particulars dated October 31 2011 , claiming that plaintiff tripped and fell on a "jagged edge sidewalk. " [* 6] Whether or not the Vilage had actual or constructive notice of a defect related to the sidewalk at 114 Soundview Drive , actual or constructive notice does not satisfy the prior written notice requirement at 475- 476; Wilkie v. Town of Huntington Dept. , 2006); Silva v. City of New York 17 A. 3d 566 Costa v. Town of Babylon 6 Misc. 3d 7 , 787 N. S.2d Tonorezos v. County of Nassau 266 A. 2d 387 , 698 (Amabile, supra 3d 898 816 N. 2d 148 (2d 793 N. 2d 478 (2d Dept. , 2005); 810 (App. Term , 2d Dept. , 2004); S.2d 331 (2d Dept. , 1999)). In any event , plaintiff has failed to raise a triable issue offact because the self-serving affidavit submitted in opposition to the instant motion contradicts his prior sworn testimony wherein he stated that he fell because of a gap between the sidewalk flags located approxi'mately fifteen (15) feet past the driveway of 114 Soundview Drive (see Lipsher v. 650 Crown Equities, LLC 81 A. 3d 789 , 917 N. Y.S. 2d 249 (2d Dept. , 2011)). Defendant Vilage s motion for summary judgment is granted , and the complaint is dismissed. The foregoing constitutes the Order of this Court. Dated: March 22 , 2012 Mineola , N. ENTERED MAR 27 2012 NASSAU COUNTY COUTY CLERK' S OFFICE
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