Dutka v Odierno

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Dutka v Odierno 2012 NY Slip Op 31277(U) March 29, 2012 Sup Ct, Nassau County Docket Number: 26/11 Judge: F. Dana Winslow 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 Present: HON. F. DANA WINSLOW, Justice TRIAL/lAS, PART 3 PAULA DUTKA and BROOKE DUTKA an infant NASSAU COUNTY by her mother and natural guardian, PAULA DUTKA, Plaintiffs, -against- MOTION SEQ. NO. : 003 MOTION DATE: 12/20/11 NIKOLETTE DANDRA ODIERNO, JOSEPH J. ODIERNO, MICHAEL DUTKA, RICHARD HERLICH, BARBARA HERLICH, BERNARD SHENKMAN, BARBARA SHENKMAN, COUNTY OF NASSAU, INDEX NO. : 26/11 TOWN OF OYSTER BAY, INC. VILLAGE OF MASSAPEQUA PAR, Defendants. The following papers having been read on the motion (numbered 1-4): Notice of Motio D. Supplemental Afrmation in Opposition............. .................................... Affirma ti on in Op position.................................................. ...................... .... Rep Iy Affrma ti 0 D.................. ............ .... .... .... ....... Motion by defendant Town of Oyster Bay, Inc. (the " Town ) for an order: pursuant to CPLR 3211 (a)(1) and (7) dismissing the complaint and/or portions thereof on the grounds of defenses based on documentary evidence and the failure to state causes of action; and 2) to strike the plaintiffs ' bil of pariculars and/or portions thereof that allege theories of liabilty that were not alleged in the notice of claim is determined as follows. The facts of this case have been adequately set fort in our order dated September 16, 2011 and include the following: This action to recover for personal injuries sustained by plaintiff in a motor vehicle accident (the "Accident" ) that occurred on June 6 2010 at the intersection of Beaumont Avenue and Park Boulevard in the Town of Oyster Bay, Nassau County, New York, Plaintiffs Brooke Dutka and Paula Dutka allege that they were passengers in a motor vehicle driven by defendant Michael Dutka, which was traveling [* 2] southbound on Park Boulevard , when their vehicle came into contact with a motor vehicle driven by defendant Nikolette Dandra Odierno and owned by defendant Joseph J. Odierno, which was traveling eastbound on Beaumont Avenue. Plaintiffs ' allege , among other things , that (i) the failure of Nikolette Dandra Odierno to stop at the stop sign on Beaumont A venue was the precipitating cause of the Accident; (ii) the stop sign located on Beaumont Avenue at its intersection with Park Boulevard was obstrcted by overgrown vegetation; and (iii) the Vilage had a duty to maintain that location a reasonably safe condition , and negligently failed to do so. Paragraph 2 of the notice of claim dated August 9, 2010, states: This claim seeks money damages for personal injuries. The claim is one for money damages due to the personal injuries and damages incurred by the plaintiffs as a result of the carelessness , recklessness and negligence of the County of Nassau, Town of Oyster Bay, Inc. and Vilage of Massapequa Park, including its agents , servants and/or employees with regard to the manner in which it owned, operated maintained and controlled the roadways and the road signage in and around the intersection located at Park Boulevard and Beaumont Avenue in the Incorporated Vilage of Massapequa Park. Paragraph 3 thereof states: The claim arose on June 6 , 2010 at approximately 4:05 PM when a vehicle drven by Nikolette Odierno was caused to impact with the plaintiffs ' vehicle after failng to stop at a stop sign located at the subject intersection. It is alleged that the defendants created a dangerous condition and/or had actual and constrctive notice of the dangerous condition existing at the subject intersection and involving the signage located thereat, to wit , overgrown vegetation impeding the view of the stop sign on Beaumont Avenue. " ( [* 3] In the summer of 20 11 , the Vilage moved for summary judgment pursuant to CPLR 3212 dismissing plaintiffs ' cause of action and all cross- claims asserted against it on the grounds that it cannot be held liable because it did not own , maintain or control the portion of the roadway or the stop sign where the accident occurred and it did not receive prior written notice , as required by CPLR 9804 , of any defect involving the stop sign or overgrown vegetation obscuring the stop sign on Beaumont Avenue. In denying summar judgment , we found that the prior written notice laws are inapplicable here as they do apply to claims of defective stop signs. Doremus Incorporated Vilage ofLynbrook 18 NY2d 362 Calvin , 189 AD2d 870 (2 Dept 1993). As to the lack of ownership or control of the area in question we found that " (t)he parties opposing the motion present(ed) evidence that the overgrown vegetation that obstrcted the stop sign on Beaumont A venue extended from a tree located on Park Boulevard , which is within the jurisdiction of the Vilage. " In paricular the Town argued that "the Vilage was responsible for maintaining the tree on Park Boulevard to assure the visibilty of stop signs on Park Boulevard and the roadways that intersect it." In support of the instant motion , the Town asserts that the " allegations in the complaint ( 35) and the bil of particulars ( 3(a)), except for subsection ' d' should be dismissed from the complaint and stricken from the bil of pariculars in that they attempt to introduce new theories of liabilty as against the Town and, to the extent that they are deemed to relate to the alleged obstruction of the stop sign on Beaumont Avenue , they are vague , repetitive and confusing surplusage , given the clear and unambiguous statement of , 366 (1966); that allegation in subsection ' see Torres 44 of John Pieret' s Affnnation). Here , the first notice of claim made a single and specific factual claim against the Town , namely, that it negligently caused or permitted foliage to block the stop sign at the southwest corner of the intersection. Further, since plaintiffs ' complaint and bil of pariculars do not allege that the Town received prior written notice of any obstructed sight lines , plaintiffs have failed to allege the condition precedent to bringing this action and therefore , failed to state a cause of action. Hence , the Town concludes that those portions of the complaint that allege theories of liability not factually supported in the notice of claim requiring prior written notice should be dismissed and those portions of the bil of parculars that allege theories of liabilty not factually supported in the notice of claim should likewise be stricken. [* 4] In opposition to the motion , plaintiff submits a supplemental affirmation in opposition wherein he anexes a second notice of claim dated August 23, 2010. Paragraphs 2 and 3 of plaintiff's notice of claim dated August , 23, 2010 provide that: The nature of the claim: This claim seeks money damages for personal injuries. The claim is one for money damages due to the personal injuries and damages incurred by the plaintiffs as a result of the carelessness, recklessness and negligence of the County of Nassau, Town of Oyster Bay, and Incorporated Vilage of Massapequa Park, including its agents servants and/or employees with regard to the maner in which it owned, operated, maintained and controlled the roadways and the road signage in and around the intersection located at Park Boulevard and Beaumont Avenue in the Incorporated Vilage of Mass ape qua Park. The time when , the place where and the manner in which the claim arose: The claim arose on June 6 , 2010 at approximately 4:05 PM when a vehicle driven by Nikolette Odierno was caused to impact with the plaintiffs ' vehicle after failing to stop at a stop sign located at the subject intersection. It is alleged that the defendants created a dangerous condition and/or had actual and constructive notice of the dangerous condition existing at the subject intersection and involving the sinage located thereat, as well as overgrown vegetation impeding the view of traffic on Park Boulevard. Relying upon the two notices of claim, plaintiffs allege that they both set fort sufficient information about the time, the location , and the manner in which the subject claim arose so to put the defendants on proper and sufficient notice to proceed with whatever investigation they deemed proper. Furher, the allegations within the notices of claim dated August 9 2010 and August 23 2010 , alleged a failure by the defendants herein to " ( [* 5] maintain and control the roadways at the subject intersection as a whole. In sum, plaintiffs contend that "the Town has failed to demonstrate that plaintiffs pleadings set fort anything more than simply amplifications of the allegations set fort in their two notices of claim, and has failed to demonstrate how it was prejudiced in conducting its investigation of the subject location at the time the notices of claim were fied and served. 8 aof Jinan Monique Arafat's Affirmation). To succeed on a motion pursuant to CPLR 3211(a)(1), the documentar evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law , and utterly refutes plaintiffs factual allegations , conclusively establishing a defense as a matter of law Mutual Life Ins. Co. , ofN.Y 98 NY2d 314 326 Martinez State (Goshen (2002); Leon 84 NY2d 83 (1994); Street Bank and Trust Co. LLC AG Capital Funding Partners, L.P. Ginsburg Development Companies 11 NY3d 146 (2008); Carbone 85 AD3d 1110 (2 60 AD3d 1021 (2 Dept 2009)). On a motion to dismiss for failure to state a cause of action pursuant to CPLR Dept 2011); 1191 L. G. Richmond Ave. Associates, LLC Capital, LLC, 3211(a)(7), the cour four corners of the pleading factual allegations are discerned which taken together manifest any cause of action cognizable at law must determine whether from the Kumar 45 AD3d 560 (2 Morad 27 AD3d 626 , 627 (2 Dept 2006)). Further the pleading is to be afforded a liberal construction , the facts alleged in the complaint accepted as true , and the plaintiffs accorded the benefit of every possible favorable (Salvatore Dept 2007), NY3d 703 (2008), quoting Iv to app den. Morad City of New York Sokoloffv Harriman Estates Development Corp. East 13 Street Tifereth, Place, LLC 73 AD3d 706, 707 (2 Dept. 2010)). Notably, " (w)hether a plaintiff can ultimately establish its allegations is not par of the calculus in determining a motion to dismiss Co. 5 NY3d 11 , 19 (2005); inference (Nonnon 9 NY3d 825 (2007); 96 NY2d 409 (2001); (EBC 1, Inc. Ginsburg Development Companies, LLC 873 (2 Leon Martinez, supra; Kats Goldman, Sachs Breslin 47 AD3d Carbone, supra; Farber Dept 2008)). Timely and proper service of a notice of claim which inter alia sufficiently identifies the claimant , states the nature of the claim and describes "the time when , the place where and the manner in which the claim arose, " is a condition precedent to the commencement of a commonGeneral law tort action against a municipality Municipal Law 50-e(2); Brown (see City of New York 95 NY2d 389 , 392- 393 (2000); [* 6] 40 AD3d 736 (2 see HendricksonCity of White Plains 2012 NY Slip Op 00930). The purose of the statutory notice of claim requirement (General Municipal Law 50-e) is to afford the public corporation " an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim while information is stil readily available City of New York 304 NY440, 443 (1952); see O' 54 NY2d 353, 41 NY2d 521 524 (1977)). To that end, the statute requires that the notice set forth "the time when, the place where and the maner in which the claim arose Town ofSmithtown Santoro Dept 2007); Brown (Teresta Brien City of Syracuse, 358 (1981); Salesian Socy. Vilage ofEllenvile, (General Municipal Law 50-e(2); see Brown City of New York, supra). The requirements of the statute are met when the notice describes the accident with sufficient particularity so as to enable the defendant to conduct a proper investigation thereof and to assess the merits of the claim Society for Seamen 88 AD3d 970 (2 City of Syracuse, supra; New York City Tr. Auth. 7 AD3d 574 (2 New York City Tr. Auth. 243 AD2d 673 , 674 (2 City of New York 111 AD2d 785 , 786 (2 Dept 1985)). Further, " (w)hether the notice of claim substantially complies with the requirements of the statute depends on the circumstances of each case (Id. ; see (see Palmer s Children, Dept 2011); Ingle Brien Dept 2004); Dept 1997); Schwartz supra; Cyprien Cyprien Levine City of New York 250 NY 332 335 (1929); New York City Tr. Auth. , supra; Levine lngle New York City Tr. Auth., City of New York, supra). Applying these principles to the case at bar, we find that the notices of claim 50-e(2). In view of the foregoing, the motion is denied. This constitutes the Order of the Cour. substantially comply with General Municipal Law Dated: cfC3 (:z ENTERED MAY 0 1 2012 NASSAU COUNTY COUNTY CLERK' S OFFICE

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