Ibanez v Town of Manhasset

[*1] Ibanez v Town of Manhasset 2007 NY Slip Op 52342(U) [17 Misc 3d 1139(A)] Decided on November 26, 2007 Supreme Court, Nassau County McCormack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 26, 2007
Supreme Court, Nassau County

Rosa Ibanez, Plaintiff, v Town of Manhasset, NASSAU COUNTY, TOWN OF NORTH HEMPSTEAD, VILLAGE OF PLANDOME HEIGHTS, MICHAEL ATTARD and CYNTHIA ATTARD, Defendants.



000854/06

James P. McCormack, J.

Motion by defendant, Town of North Hempstead, pursuant to CPLR 3212, for an Order of this Court, granting summary judgment dismissing the complaint of the plaintiff, Rosa Ibanez, and any and all cross claims asserted against it;

Motion by defendant, Village of Plandome Heights, pursuant to CPLR 3212, for an Order of this Court, granting summary judgment dismissing plaintiff's complaint and any and all cross claims asserted against it; and,

Motion by defendants, Michael Attard and Cynthia Attard, pursuant to CPLR 3212, for an Order of this Court, granting summary judgment dismissing the plaintiff's complaint and any and all cross claims asserted against it; are determined as follows:

This personal injury action arises out of an accident which occurred on January 17, 2005 at approximately 6:30 a.m. Plaintiff, Rosa Ibanez, was a pedestrian on the sidewalk in front of 656 Plandome Road, Manhasset, New York (the "subject premises"). She alleges that she was caused to trip and/or slip and fall and be injured as a result of the defendants' negligence in their ownership, operation, control and maintenance of said sidewalk. At deposition, plaintiff identified the defect that caused the accident as a height differential on the sidewalk (an uneven sidewalk).

This Court notes at the outset that pursuant to a written stipulation dated July 2, 2007, plaintiff, Rosa Ibanez, discontinued the action against the defendant, County of Nassau, with prejudice. It remains unclear to this Court as to the status of defendant, Town of Manhasset.

Upon the instant motions, defendants, Town of North Hempstead ("Town"), Village of Plandome Heights ("Village") and the homeowners, Michael and Cynthia Attard (collectively referred to herein as the "Attards" or the "homeowner defendants"), seek summary judgment dismissal of plaintiff's complaint.

Plaintiff, Rosa Ibanez, does not oppose defendant, Town of North Hempstead's motion for summary judgment. Nevertheless, this court is not relieved of its obligation to ensure that the movant has demonstrated its entitlement to the relief requested (Zecca v. Ricciardelli, 293 AD2d 31 [2nd Dept. 2002]).

The Town submits that it is entitled to summary dismissal of plaintiff's complaint on the grounds that it has no jurisdiction or control of the location of the alleged incident and also that it did not receive prior written notice of the alleged defect. The Town Highway Superintendent, Thomas Tiernan, testified at deposition that the sidewalk in question is not within the jurisdiction [*2]of the Town but rather that it falls within the purview of the Village (Tiernan Tr., pp. 10-11). Similarly, the Deputy Clerk for the Village, Ann Demeri, also testified that the sidewalk is within the jurisdiction of the Village (Demeri Tr., p. 11). She stated that the Village maintains the sidewalk in front of the subject premises (Id., p. 15). In support of its motion, in addition to submitting the deposition testimonies of Thomas Tiernan and Ann Demeri, the Town also submits the affidavits of the Clerk of the Town, Leslie C. Gross and the Highway Superintendent, Thomas Tiernan which confirm that the Town neither controlled the location at issue nor had the authority to repair or make modifications to the locations at issue. As the Town has clearly established that it did not own or control the situs of the within accident, it is entitled to summary judgment as a matter of law (Ernest v. Red Creek School District, 93 NY2d 664 [1999]; Silver by Silver v. Cooper, 199 AD2d 255 [2nd Dept. 1993] lv. denied 83 NY2d 753 [1994]; Kovalsky v. Vill. of Yaphank, 235 AD2d 459 [2nd Dept. 1997]; May v. Town f Islip, 207 AD2d 872 [2nd Dept. 1994]). Notably, the plaintiff, in "opposition" submits that the basis of her "lack of opposition is . . . that the witness produced on behalf of Village of Plandome Heights clearly testified that the sidewalk in question fell into the jurisdiction of the Village of Plandome Heights" (Aff. In Opp., ¶2). Thus, based on the foregoing, defendant, Town of North Hempstead's motion for summary dismissal of plaintiff's complaint is granted.

The Village grounds its motion for summary judgment on the fact that it never received prior written notice of the defective condition. It is true that "a municipality that has adopted a prior written notice law cannot be held liable for a defect within the meaning of the law absent the requisite written notice, unless an exception to the requirement applies" (Delgado v. County of Suffolk, 2007 WL 1289986 [2nd Dept. 2007]). The "only exceptions to the requirement which have been recognized by the Court of Appeals are where the municipality created the defect or where a special use confers a benefit on the municipality" such that the municipality's prior actual notice is not a sufficient predicate for the imposition of municipal tort liability (Berner v. Town of Huntington, 303 AD2d 513 [2nd Dept. 1992]).

In this case, however, the record reflects that Ann Demeri testified, on behalf of the Village, that although she found no specific complaints regarding the subject sidewalk, she was actually aware of written prior notice received by the Village about problems with the subject sidewalk, testifying that in 2004, the Board of Trustees, had a building inspector perform a survey of the Village sidewalks (Demeri Tr., pp. 19-20). She described the results of this survey as indicating that four flags on the subject sidewalk in front of the subject property needed repair (Id., pp. 23-25). However, Ms. Demeri was not able to testify as to whether any repair was performed on this sidewalk (Id., p. 25). She could not say specifically whether or not work had been performed by the Village on this sidewalk in the two years prior to this accident (Id, pp. 12, 15-16) Ms. Demeri also testified at her deposition that there was a subsequent survey done in 2005 and that while a letter was also sent by the Village Clerk to the property owner regarding the condition of the sidewalk, she could not be certain of the date of this letter (Id., pp. 31-32, 34, 36).

Thus, based on this proof, it is clear that the Village had actual notice of the subject sidewalk defect. In that regard, the Village submits that the mere fact that the Village acquired actual notice of the subject defect through an intra-departmental general survey of it's sidewalks, is an insufficient predicate to satisfy the strictly construed requirements of the Village Code §82-[*3]1 (Berner v. Town of Huntington, 304 AD2d 513 [2nd Dept. 2003]; Cenname v. Town of Smithtown, 303 AD2d 351 [2nd Dept. 2003]; Sparrock v. City of New York, 242 AD2d 289 [2nd Dept. 1992]). This argument is entirely unavailing and defendants' reliance on this case law is misplaced.

The record reflects that Ms. Demeri, as the Deputy Clerk of the Village, was aware of the 2004 survey and kept the survey in a sidewalk file. In fact, she stated that the Clerk even wrote the abutting property owner a letter regarding this survey. Under the circumstances, it seems clear that the written notice requirements have been complied with (Harrington v. City of Plattsburgh, 216 AD2d 724 [3rd Dept. 1995]; Brooks v City of Binghamton, 55 AD2d 482 [3rd Dept. 1977]; Scherm v. Town of N. Hempstead, 45 AD2d 886 [2nd Dept. 1974], app. dismissed 36 NY2d 841 [1975]).

While there was no evidence that the four flagstones referred to in the 2004 survey referred to the exact condition that caused plaintiff's accident, "[t]he characterization of the sidewalk as defective in an area which reasonably encompasses the particular patent defect alleged ... is sufficient to meet the requirement of particularization of the condition of the sidewalk for the purposes of resisting a motion for summary judgment" (Harrington v. City of Plattsburgh, supra).

Defendant's argument that written prior notice had to emanate from a private citizen and could not come from the Village's own employees is meritless (Schuster v. Town of Hempstead, 130 AD2d 481 [2nd Dept. 1987]). Moreover, because the evidence here establishes that this survey was sent to the Village Clerk, this satisfies the requirement under the Village of Plandome Heights Code §82-1 that notice is given to the Village Clerk. Accordingly, the Village's reliance on case law supporting its argument regarding the insufficiency of actual notice is misplaced.

In Berner v. Town of Huntington, supra, no written notice of any form was provided to the town. In Cenname v. Town of Smithtown, supra, there was no written notice, only a verbal telephone call, and it was not provided to the town clerk as required by the town code. In Sparrock v. City of New York, supra, an intra-departmental memo regarding the defect was circulated within the Department of Parks but was not provided to the commissioner of the Department of Transportation as required by the New York City Administrative Code §7-201[c].

In light of the foregoing, this Court finds that the Village's failure to make a prima facie showing of entitlement to judgment as a matter of law requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]).

Finally, defendants', Michael and Cynthia Attard, motion for summary judgment dismissal of plaintiff's complaint is also granted. The homeowner defendants ground their motion on the fact that no act or omission on their part was the proximate cause of plaintiff's injuries. At their deposition, the Attards both confirmed that they made no repairs to the subject sidewalk and made no special use of the subject property (Michael Attard Tr., pp. 9-10). The Attards also argue that there is no statute imposing liability for injuries to pedestrians on them, as the abutting landowners and there is not statute imposing an obligation on them to maintain or repair the subject sidewalk. Relying on Fishelberg v. Emmons Ave. Hospitality Corp., the Attards argue that they had no statutory duty to repair the sidewalk nor did they create the alleged condition (Fishelberg v. Emmons Ave. Hospitality Corp., 26 AD3d 460 [2nd Dept. 2006]). [*4]

It is well settled that a landowner will not be liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner's premises unless "the landowner created the defective condition or caused the defect to occur because of some special use, or unless a statute or ordinance placed the obligation to maintain the sidewalk upon him" (Surowiec v City of New York, 139 AD2d 727, 728 [2nd Dept. 1988]; Zucker v 1255 Hewlett Plaza Realty Co., 172 AD2d 517 [2nd Dept. 1991]). In the present case, the Attards submit that there is no evidence on this record that they created or caused the allegedly defective condition.

In addition, the Village of Plandome Heights Code § 110-6, imposes on abutting landowners a duty to maintain the public sidewalk. However, it does not expressly impose tort liability upon the landowner for injuries caused by a violation of that duty (Village of Plandome Heights Code § 110-6; Parker v Singer, 202 AD2d 409 [2nd Dept. 1994]; Conlon v Village of Pleasantville, 146 AD2d 736 [2nd Dept. 1989]). Specifically, this provision of the Village Code states, in pertinent part, as follows:

Everyowner or occupant of property shall maintain in good repair and safe condition the sidewalk and curbing abutting said property. . . The Village Clerk shall give to each such owner or occupant 10 days' written notice that said sidewalk or curb is in an unsafe condition or disrepair and failure of said owner or occupant to correct such unsafe condition shall constitute a violation of this chapter (Code of Village of Plandome Heights, §110-6).

Moreover, there is no evidence that the Attards even received the 10 days' written notice that said sidewalk was in an unsafe condition at any time prior to plaintiff's accident (Michael Attard Tr., p. 11). In fact, Ann Demeri, for the Village could not confirm when or whether this letter was sent to the homeowner defendants (Demeri Tr., p. 36).

Thus, in light of the homeowner defendants' showing of entitlement to judgment as a matter of law, the burden shifts to plaintiff, Rosa Ibanez, as the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact requiring a trial (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]).

In opposition, plaintiff, Ibanez, points to Village Code §1-15 which imposes both civil and criminal penalties for violating the code. Plaintiff argues that this provision in conjunction with §110-6 inure specifically to the benefit of those using the public sidewalk, and the failure to obey its requirements should be deemed evidence of negligence. This argument is unavailing.

First, as stated above, there is simply no evidence that the Attards received any 10 days' written notice that the sidewalk was in any unsafe condition. Thus, the plaintiff has failed to demonstrate that the homeowner defendants "violated" the Code §110-6 in the first place.

Second, it is well settled that in the absence of any express imposition of tort liability upon an adjoining land owner for a violation of a duty to maintain the sidewalk for the benefit of the Village, the defendants simply cannot be subject to tort liability for any alleged breach of the code provision (Donnelly v Feit, 199 AD2d 365 [2nd Dept. 1993]; Forelli v Rugino, 139 AD2d 489 [2nd Dept. 1988]; Conlon v Village of Pleasantville, 146 AD2d 736 [2nd Dept. 1989]).

Plaintiff's failure to raise a triable issue of fact as to whether the Attards created the allegedly defective condition, made a special use of the subject sidewalk, or violated a statute imposing an obligation on them to maintain the sidewalk and expressly making them liable for injuries occasioned by failure to perform that duty, defendants', Michael and Cynthia Attard, [*5]motion for summary judgment dismissal of plaintiff's complaint is herewith granted.

This shall constitute the decision and order of this Court.