Devuono v City of Yonkers

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Devuono v City of Yonkers 2018 NY Slip Op 34249(U) December 12, 2018 Supreme Court, Westchester County Docket Number: Index No. 57877/2018 Judge: Charles D. Wood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 12/17/2018 09:30 AM NYSCEF DOC. NO. 32 INDEX NO. 57877/2018 RECEIVED NYSCEF: 12/12/2018 To commence commence the statutory statutory time time period period for appeals appeals as of of right right (CPLR (CPLR 5513[a]), 55 13[a]), you you are are advised advised to serve serve a copy copy of this order, of order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME THE STATE SUPREME COURT COURT OF OF THE STATE OF OF NEW NEW YORK YORK COUNTY COUNTY OF OF WESTCHESTER WESTCHESTER ---------------------------------------------------------------------x ---------------------------------------------------------------------X GIULIANA GIULIANA DEVUONO, DEVUONO, Plaintiff, Plaintiff, -against-against- DECISION DECISION & ORDER ORDER Index No. 57877/2018 5787712018 Index Sequence Sequence No. NO.11 THE CITY CITY OF OF YONKERS, YONKERS, THE THE VILLAGE VILLAGE OF OF THE BRONXVILLE, JAN P. MAHLSTEDT, and BRONXVILLE, JAN MAHLSTEDT, and EVA MARIA MARIA ABADIA ABADIA MAHLSTEDT, MAHLSTEDT, EVA Defendants. Defendants. -------------------------------------------------------------------x -------------------------------------------------------------------x WOOD,J. WOOD,J. following papers papers were were read and considered considered in connection connection with with moving moving defendant defendant The following Village of of Bronxville Bronxville ("the ("the Village") Village") motion motion for summary summary judgment, opposition of of Jan Jan The Village judgment, and opposition Mahlstedt and Eva Eva Maria Maria Abadia Abadia Mahlstedt Mahlstedt ("Mahlstedts"): ("Mahlstedts"): P. Mahlstedt Village's Notice of Motion, Motion, Counsel's Counsel's Affirmation, Affirmation, Exhibits. Exhibits. Village's Notice of Mahlstedts' Cross-Motion Cross-Motion and Counsel's Counsel's Affirmation Affirmation in Opposition Opposition to Village's Village's Mahlstedts' motion, Me. Memorandum Exhibits motion, morandum of of Law, Exhibits Village's Counsel's Counsel's Reply Reply Affirmation. Affirmation. Village's Plaintiff commenced commenced this action against defendants result of of a slip and fall on April April Plaintiff action against defendants as a result 29,2017, sidewalk located located near near 301 Bronxville Bronxville Road Road in Yonkers. Yonkers. Plaintiff Plaintiff claims claims that that she 29, 2017, on a sidewalk cracked, uneven, uneven, defective slanted sidewalk, sidewalk, causing causing her serious injuries. The The fell on a cracked, defective and slanted serious injuries. Village brings brings this motion motion for summary summary judgment dismissing all claims claims and cross-claims cross-claims Village judgment dismissing against it on the grounds grounds that that the Village Village does not own own or maintain maintain the accident accident location, location, and against [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 12/17/2018 09:30 AM NYSCEF DOC. NO. 32 INDEX NO. 57877/2018 RECEIVED NYSCEF: 12/12/2018 has no duty to maintain defective maintain it; and it did not receive receive prior prior written written notice notice of of the the alleged alleged defective condition. The Mahlstedts Mahlstedts oppose oppose the motion. motion. No opposition papers from from plaintiff plaintiff have have been been condition. opposition papers submitted. decided as follows: submitted. NOW, NOW, upon upon the foregoing foregoing papers, papers, the motion motion is decided follows: settled that that a proponent proponent of of a summary motion must must make make a "prima "prima It is well settled summary judgment judgment motion facie showing judgment as a matter tendering sufficient showing of of entitlement entitlement to judgment matter of of law, law, tendering sufficient evidence evidence to demonstrate the absence of any material material issues issues of fact" (Alvarez Prospect Hospital, Hospital, 68 NY2d demonstrate absence of of fact" (Alvarez v Prospect NY2d 320, 324 [1986]; [1986]; Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d 320, AD3d 684, 686686Dept 2007]; 2007]; Rea Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). failure to 2007]). Moreover, Moreover, failure 687 [2d Dept prima facie showing showing requires requires a denial of the motion, motion, regardless regardless of of the sufficiency sufficiency make such such a prima denial of of motion papers papers (Winegrad (Winegrad v New New York Yark University University Medical Medical Center, Center, 64 NY2d of the motion NY2d 851, 853 Jakabovics v Rosenberg. Rosenberg, 49 AD3d AD3d 695 [2d Dept Dept 2008]; Menzel v Plotkin, Plotkin, 202 [1986]; Jakabovics 2008]; Menzel 202 AD2d AD2d 558-559 [2d Dept Dept 1994]). 1994]). Once the movant movant has met met this threshold threshold burden, burden, the opposing 558, 558-559 opposing party must must present present the existence existence of of triable triable issues issues of of fact (Zuckerman party (Zuckerman v New New York, York, 49 NY2d NY2d [1980]; Khan Khan v Nelson, AD3d 1062 [2d Dept Dept 2009]). 2009]). In deciding motion for deciding a motion 557, 562 [1980]; Nelson, 68 AD3d summary judgment, court is "required "required to view view the evidence evidence presented presented in the light light most most summary judgment, the court favorable to the party party opposing opposing the motion motion and to draw draw every reasonable inference inference from the every reasonable favorable pleadings and the proof proof submitted submitted by the parties parties in favor favor of pleadings of the opponent opponent to the the motion" motion" (Yelder v Walters, Walters, 64 AD3d AD3d 762, 762, 767 [2d Dept Dept 2009]; 2009]; Nicklas Tedlen Realty Realty Corp., Corp., 305 (Yelder Nicklas v Tedlen AD2d 385, 386 [2d Dept Dept 2003]). 2003]). Summary Summary judgment remedy and should AD2d judgment is a drastic drastic remedy should not be granted where where there there is any doubt doubt as to existence existence of of a triable triable issue issue (Alvarez Prospect Hospital, Hospital, granted (Alvarez v. Prospect NY2d 320,324 320,324 [1986]). [1986]). 68 NY2d of its motion motion for summary Village offers In support support of summary judgment, judgment, the Village offers the affidavit affidavit from James M. Palmer, Palmer, the Village Village Clerk/ Clerk! Administrator. Administrator. He attests attests that that he is familiar familiar with with the James 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 12/17/2018 09:30 AM NYSCEF DOC. NO. 32 INDEX NO. 57877/2018 RECEIVED NYSCEF: 12/12/2018 jurisdictional boundaries of of the Village. Village. According According to Mr. Palmer, Palmer, the the alleged alleged accident accident location location jurisdictional boundaries of 301 Bronxville Bronxville Road Road in Yonkers Yonkers is located located within within the City City of Yonkers, and not the Village Village of of Yonkers, of Bronxville. Bronxville. A zoning zoning map map of of the Village, Village, shows shows that that Bronxville Bronxville Road Road indeed indeed is not located located of within the confines confines of Village. within of the Village. light of of the affidavit affidavit from the Village Village representative, representative, the Village Village met met its initial initial burden In light burden own, occupy occupy or control control that that property. property. Moreover, Moreover, a municipality municipality cannot cannot be held held that it did not own, failure to maintain maintain in a reasonably reasonably safe condition condition property does not own own or liable for the failure property it does control unless affirmatively undertakes (Mudgett v Long Long Island Island R.R., R.R., 81 81 AD3d AD3d control unless it affirmatively undertakes such a duty (Mudgett 612,613 Dept 2011]). 2011]). On this this basis basis alone, alone, the Village Village has met met its prima prima facie case. case. 612, 613 [2d Dept Palmer also also attests attests that that he conducted conducted a search search of of any prior written notices notices and Notices prior written Notices Palmer of claim claim pertaining accident location location at any time time up to and and including including the accident accident date of of of pertaining to the accident 2017. He explains explains that that the Village Village records records are kept kept in a log book book and claims claims are April 29, 2017. recorded in alphabetical alphabetical order order by street street name, name, dating dating back back 25 years years ago. ago. His search search revealed revealed recorded Village did not not receive receive written written notice notice of of the allegedly allegedly defective defective sidewalk sidewalk or notices notices of of that the Village claim regarding regarding the subject subject location location at any time prior accident date. claim prior to the accident Village may may be liable liable only for those those defects defects and and dangerous dangerous conditions conditions on its As the Village streets and sidewalks sidewalks of of which which it has been been actually actually notified, notified, in writing, writing, the Village Village has streets demonstrated a prima prima facie entitlement entitlement to summary (Farrago v Great Great Atl. At!. & Pac. Tea Tea demonstrated summary judgment judgment (Farrago AD3d 631 631,, 632-33 632-33 [2d Dept Dept 2005]). 2005]). Co., 17 AD3d plaintiff failed failed to oppose oppose this motion, motion, and the record record contains contains no sufficient sufficient evidence evidence As plaintiff Village had prior written notice defective condition condition which which allegedly allegedly caused caused the of the defective that the Village prior written notice of plaintiff to fall, fall, no triable triable issues issues of of fact have been been raised raised to defeat the Village' Village's s motion motion for plaintiff defeat the summary judgment. summary judgment. 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 12/17/2018 09:30 AM NYSCEF DOC. NO. 32 INDEX NO. 57877/2018 RECEIVED NYSCEF: 12/12/2018 Further, the Mahlstedts Mahlstedts contention contention that the summary summary judgment was premature premature is without without Further, judgment was merit, since they failed failed to offer offer an evidentiary evidentiary basis basis to suggest that the discovery discovery may merit, since they suggest that may lead to relevant relevant evidence. evidence. The Mahlstedts' Mahlstedts' "hope "hope and speculation speculation that that evidence evidence sufficient sufficient to defeat defeat the motion might might be uncovered uncovered during during discovery discovery was an insufficient insufficient basis basis for denying denying the motion." motion." motion (Conte v Frelen Frelen Assoc., Assoc., LLC, 51 AD3d AD3d 620, 620, [2d Dept. 2008]). 2008]). In light light of the the foregoing, foregoing, the (Conte Village'ss motion motion for summary summary judgment granted in its entirety. entirety. Village' judgment is granted This constitutes constitutes the Decision Decision and Order Order of of the court. court. This NOW, therefore, it is hereby hereby NOW, therefore, ORDERED, that that the motion motion by the Village Village of of Bronxville Bronxville for summary ORDERED, summary judgment judgment dismissing the complaint complaint and and all cross claims asserted asserted against against it is granted; and it is further further dismissing cross claims granted; and ORDERED, that that the caption caption ofthis of this matter matter shall amended to read: shall be amended ORDERED, SUPREME COURT COURT OF OF THE STATE OF OF NEW NEW YORK YORK SUPREME THE STATE COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------------x ---------------------------------------------------------------------x GIULIANA DEVUONO, DEVUONO, GIULIANA Plaintiff, Plaintiff, -against-againstIndex No. 57877/2018 Index 57877/2018 THE CITY CITY OF OF YONKERS, YONKERS, JAN JAN P. MAHLSTEDT, MAHLSTEDT, and and THE EVA MARIA ABADIA ABADIA MAHLSTEDT, MAHLSTEDT, EV A MARIA Defendants. Defendants. -------------------------------------------------------------------x -------------------------------------------------------------------x further ;and it is further ORDERED, that that all remaining remaining parties parties shall appear appear for a conference conference in the Compliance Compliance ORDERED, Conference Part, Room Room 800, 800, Westchester Westchester County County Courthouse, Courthouse, 111 III Dr. Martin Martin Luther Luther King King Jr. Conference 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 12/17/2018 09:30 AM NYSCEF DOC. NO. 32 Blvd., White White Plains, Plains, New York 10601 10601,, on Blvd., New York INDEX NO. 57877/2018 RECEIVED NYSCEF: 12/12/2018 F=~(;,. II!>~) a 0OII Cf Cl F=~"• '3~ J o1 9:30 A.M. at 9:30 Clerk shall mark mark his records records accordingly. accordingly. The Clerk December 12, 2018 2018 Dated: December White Plains, Plains, New York White New York CHARLES D. WOOD To: To: Parties by NYSCEF All Parties NYSCEF 5 [* 5] 5 of 5

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