Hagan v County of Nassau
Annotate this Case
Download PDF
Hagan v County of Nassau 2012 NY Slip Op 32084(U) July 26, 2012 Sup Ct, Nassau County Docket Number: 4294/11 Judge: Denise L. Sher 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] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IAS PART 31 NASSAU COUNTY WILLIAM HAGAN Plaintiff - against - Index No. : 4294/11 Motion Seq. No. : 03 Motion Date: 06/04/12 THE COUNTY OF NASSAU , THE TOWN OF HEMPSTEAD , THE VILLAGE OF ATLANTIC BEACH ARTURO MANZO and MARIA MAZO Defendants. The followin papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibits Affirmation in Su ort Affirmation in O osition and Exhibits Affirmation in Reply Upon the foregoing papers , it is ordered that the motion is decided as follows: Defendant The Vilage of Atlantic Beach (" Atlantic Beach" ) moves , pursuant to CPLR 3212, for an order granti g it sumar judgment dismissi g pillintiffs Verified GC)mpl(iint against it , as well as any cross- claims against it. Plaintiff actually filed an Affrmation in Support which stated (aJfter a review and consideration of the materials and evidence exchanged during discovery, plaintiff respectfully does not oppose the application of the defendant, The Vilage of Atlantic Beach. " Defendats Arro Mano and Marina Mano (collectively the " Manos oppose the motion. [* 2] This is an action to recover damages for personal injuries allegedly sustained by plaintiff on May 20 2010 , when he tripped and fell in the roadway adjacent to the premises known as 83 Queens Avenue, Atlantic Beach, New York. The basis of liability against defendaIt Atlantic Beach rests on allegations in the Verified Complaint that defendant Atlantic Beach was negligent in the ownership, operation , management , maintenance and control ofthe aforesaid roadway, all of which caused plaintiffs injuries. Plaintiff commenced the instat action with the filing of a SUInons and Verified Complaint on or about March 22 , 2011. Defendant Atlantic Beach served a Verified Answer on or about May 6 , 2011. Defendant Atlantic Beach moves for sumar judgment dismissing the Verified Complaint on the grounds it did not receive prior wrtten notice of the defective condition as required by N. Y. Vilage Law ~ 6- 628 and the Code of Incorporated Vilage of Atlantic Beach ~ 200- In support its motion , defendant Atlantic Beach submits the deposition transcript of Steven Cherson , Superintendent of Public Works for defendant Atlantic Beach. See Defendant Atlantic Beach' s Affirmation in Support Exhibit F. Mr. Cherson testified that his job duties include maintaining the infrastructure of defendant Atlantic Beach. He fuher testified that he leared about plaintiffs claim when the Vilage Clerk told him about the Notice of Claim. Upon learing of the claim , he went to the subject location to check out the allegations. When Mr. Cherson arrived at the subject location , he determined that no road work had been done in that area. He also determined that some type of repair had been done to the driveway apron adjacent to 83 Queens Avenue. Mr. Cherson added that it is the responsibilty of the propert owner to maintain the sidewalk and driveway, including the apron, in front of their residence. Mr. Cherson stated that repairing the conditions that he observed on the driveway and sidewalk were not the responsibility of defendant Atlantic Beach. See id ," [* 3] In further support of its motion , defendant Atlantic Beach submits the Affidavit of Emily Siniscalchi , the Vilage Clerk for defendant Atlantic Beach. Defendant Atlantic Beach' See Affirmation in Support Exhibit G. Ms. Siniscalchi states I am the Vilage Clerk for the Incorporated Vilage of Atlantic Beach. I have reviewed a copy of the Notice of Claim served on behalf of the claimant named above (plaintiff) concerning a trip and fall on November 30 , 2010 over a dangerously hazdous condition located adjacent to the driveway in the roadway in front of 83 Queens Avenue , Atlantic Beach , New York. The Incorporated Vilage of Atlantic Beach did not receive prior written notice of any defect for the location identified in the Notice of Clai. See id It is well settled that the proponent of a motion for sumar prima facie judgment must make a showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. Fox Film Corp. 3 N. 2d 395 , 165 N. Y.2d 320 508 N. Y.S. 2d 923 (1986); S.2d 595 (1980); Bhatti v. v. See Silman Alvarez S.2d 498 (1957); Zuckerman v. v. Twentieth Century- . Prospect Hospital, City of New York, 49 N. Y.2d 68 557 , 427 Roche 140 A.D. 2d 660 528 N. Y.S.2d 1020 (2d Dept. 1988). To obtain sumar judgment , the moving par must establish its claim or defense by tendering sufficient evidentiar proof, in admissible form , sufficient to warant the court, as a matter of law, to direct judgment in the movant's favor. Mfrs. , Inc. 46 N. See Friends of Animals, Inc. 2d 1065 416 N. Y.S.2d v. Farrell Lines Inc. If a sufficient 64N. prima facie 2d 1092 Associated Fur 790 (1979). Such evidence may include deposition transcripts , as well as other proof anexed to an attorney Olan v. s affirmation. See CPLR ~ 3212 (b); 489 N. Y.S.2d 884 (1985). showing is demonstrated , the burden then shifts to the non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of sumar [* 4] judgment and necessitates a trial. See Zuckerman City of New York, supra. v. When considering a motion for summar judgment , the fuction of the cour is not to resolve issues bllt rather to determine if any such material issues of fact exist. Corp. , supra. issue. Twentieth Century- Fox Film v. See Silman Mere conclusions or unsubstantiated allegations are insufficient to raise a triable See Gilbert Frank Corp. v. Federal Ins. Co. 70 N. Y.2d 966 525 N. 2d 793 (1988). Furher , to grant sumar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the cour in deciding this tye of motion is not to resolve issues of fact or determine matters of credibilty, but merely to determine whether such issues exist. v. See Barr 50 N. Y.2d 247 428 N. Albany County, S.2d 665 (1980); Daliendo Johnson 147 AD.2d 312 543 N. Y.S.2d 987 (2d Dept. 1989). In derogation of the common law, a municipality may avoid liability for injuries sustained as a result of defects or hazardous conditions on its public propert notification laws. See Amabile v. City of Buffalo 93 N. Y.2d 471 by means of prior wrtten 693 N. 2d 77 (1999). An exception to the prior written notice laws exists where the municipality creates the defective condition through an afrmative act of negligence. See id Actual or Constructive notice of a condition are insufficient to satisfy the requirement of prior written notice under the Vilage v. See id; Magee Town of Brookhaven 95 AD.3d 1179 945 N. Law. S.2d 177 (2d Dept. 2012) Where , as here , a municipality has enacted a prior wrtten notice statute , it may not be subject to liability for personal injuries caused by a defective street or sidewalk condition unless it has received prior writtn See Despositio v. v. notice of the defect or an exception to the notice requirement applies. City of New York 55 AD. 3d 659 866 N. Y.S.2d 248 (2d Dept. 2008); Town of Brookhaven 43 AD.3d 816 , 841 N. S.2d 351 (2d Dept. 2007); New York 29 AD. 3d 740 815 N. Y.S. 2d 243 (2d Dept. 2006); Vilage of Atlantic Beach 51 A. D.3d City of Schenectady, 85 N. 840 , 858 N. Y.S.2d Borgorova 359 (2d Dept. 2007). Sollowen Katsoudas v. v. City of Incorporated See also Poirier 2d 310 , 624 N. Y.S. 2d 555 (1995). On this record , defendant Atlantic Beach has made a prima facie showing of entitlement [* 5] to sumar judgment by demonstrating that it did not receive prior wrtten notice ofthe alleged defect on the sidewalk , as well as the fact that it did not create the alleged dangerous condition. Since defendant Atlantic Beach has demonstrated prima facie entitlement to summar judgment , the burden therefore shifts to the par opposing said motion to demonstrate an issue of fact which precludes sumar judgment. v. See Zuckerman City of New York, supra. In opposition to the motion , defendants Manos' argue that defendant Atlantic Beach has failed to eliminate or prove that they were not without affirmative negligence in the creation of the subject roadway condition. Defendants Manos submit that " (aJs the proponent of this motion for sumar judgment , it was incumbent upon Atlantic Beach to proffer evidence affirmatively demonstrating the absence of any exception to the prior written notice rule.... Testimonial evidence was elicited during discovery that at least two years prior to plaintiffs alleged accident , water that was ru from fire hydrants as they were flushed caused erosion in the street in front of 83 Queens Avenue and that complaints about such erosion were made to Atlantic Beach by Aruro Mano before he passed away.... No evidence was submitted by Atlantic Beach to refute this contention and any paricipation Atlantic Beach may have had in the erosion caused by such flushing. A jur could determine that Atlantic Beach was affrmatively negligent in permitting the water from the fire hydrant to wash the asphalt way and therefore Atlantic Beach has not met their burden of demonstrating a lack of affrmative negligence that would entitle them to sumar Exhibit B pp. 21 , judgment." See Defendants Manos Affirmation in Opposition 64- 65. Defendants Manos add that " (fjurher evidence was also elicited during discovery that prior to plaintiffs accident , the demolition and construction of a house across the Queens A venue from the Mano propert caused cracks in the street that were par of the defect later identified by plaintiff at his deposition.... Additionally, it was testified that Atlantic Beach hires officers whose sole job is to patrol the streets in order to maintain adherence to Vilage Code.... Therefore , it is possible for a jur to conclude that Atlantic Beach' s own code [* 6] enforcement officers were actively negligent in their enforcement of contracting work that caused street cracks contributing to plaintiff s fall. Atlantic Beach has not proven freedom from affirmative negligence and therefore they canot be granted summar judgment." Manos Affirmation in Opposition Exhibit B pp. 54- See Defendants 60 and Exhibit D. In reply to defendants Manos ' opposition , defendant Atlantic Beach argues that there are no issues of fact precluding granting it summar judgment. Defendant Atlantic Beach claims that there is no evidence that it either created the alleged defect or that it had some special use of the area in question. It submits that defendants Manos contend that there is an issue of fact as to whether or not defendant Atlantic Beach created the defect in question. With respect to same (cJo- defendant Manzo specifically alleges that there is evidence that Atlantic Beach created the defect at issue by flushing out fire hydrants near the Mano home. However , not only does Co- defendant Mano s own witness admit that the ' water company ' is the entity that flushed out the hydrants... , but Mr. Cherson affirmatively testified that the Vilage of Atlantic Beach does not own the fire hydrants at issue nor flushes them out.. .Indeed , if the erosion was the result ofthe flushing out ofthese hydrants it could not have been caused by Defendant Atlantic Beach since they do not own , control or flush out the fire hydrants at issue. By the same token , co- defendant Mano s second argument of actual and/or constructive notice also fails. Co- defendant Mano alleges that Defendant Atlantic Beach had actul or constrctive notice of the alleged defect because their code officers were monitoring the constrction across the street from the Mano home and this construction was also a cause of the defect at issues. This argument fails as a matter oflaw because it is well established that' (n)either actul notice nor constructive notice of a condition is sufficient to satisfy the requirement of prior written notice. ' Regardless of the well established case law which prevents actual or constructive notice from raising a triable issue of fact here , the records is clear that there is no proof of the same. It was affirmatively established that Mr. Cherson did the inspection of the constrction of the home across the street from the co- defendant Mano s himself and did not observe any roadway defects created by this [* 7] constrction.... Additionally, Mr. Cherson testified that he did not notice any erosion of the roadway as a result of the work being performed across the street from the Manzo s propert. See Defendant Atlantic Beach' s Affirmation in Support Exhibit F. Based upon the above , the Cour concludes that plaintiffs proof is insufficient to raise a triable issue of fact. See Zuckerman v. City of New York, supra. Accordingly, defendant Atlantic Beach' s motion , pursuant to CPLR ~ 3212 , for an order granting it sumar judgment dismissing plaintiff s Verified Complaint against it , as well as any cross- claims against it , is hereby GRANTED. The remaining paries shall appear for a Pre- Trial Conference in Nassau County Supreme Cour , Differentiated Case Management Par (DCM) at 100 Supreme Cour Drive , Mineola, New York, on August 8 , 2012 , at 9:30 a. This constitutes the Decision and Order ofthis Court. ENTER: Dated: Mineola, New York July 26 2012 ENTERED JUL 3 1 2012 NAb AU COUNl'J COUNTY CLERK' S OFFICE
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
