Sarro v County of Nassau

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Sarro v County of Nassau 2008 NY Slip Op 31900(U) June 27, 2008 Supreme Court, Nassau County Docket Number: 3524-04/ Judge: Daniel R. Palmieri 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 OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. DANIEL PALMIERI Acting Justice Supreme Court ---------------------------------------------------------------------J( NANCY E. SARRO, INDIVIDUALLY AND AS TRIAL TERM PART 48 PARNT AND NATURAL GUARIAN OF THEODORE SARO, AN INFANT UNDER THE AGE OF FOURTEEN (14) YEARS, INDEX NO. : 13524/04 Plaintiff, MOTION DA TE:6- 16SUBMIT DATE: 6-26SEQ. NUMBER - 005 -against- COUNTY OF NASSAU, INCORPORATED VILLAGE OF ISLAND PARK, TOWN OF HEMPSTEAD AND IRENE X. GKLOTSOS, Defendants. ---------------------------------------------------------------------J( The following papers have been read on this motion: Notice of Motion, dated 5- 19- 08.......................................... 08.................... Affirmation in Opposition, dated 6- 19- 08..................... Reply Affrmation, dated 6-24-08............................... Affrmation in Opposition, dated 6- 18- The motion of defendant County of Nassau (County) for sumar judgment pursuant to CPLR 3212 is granted. The complaint and all cross claims against the County, including the cross claims for contribution by defendant Vilage ofIsland park (Vilage) are dismissed. [* 2 ] On September 26 , 2003, the infant plaintiff, a pedestrian on Para Road, a thoroughfare owned and maintained by the Vilage, was strck at a location 200 feet nort of the intersection with Sagamore Road, by a vehicle operated by defendant Gklotsos. Although it is not disputed that Para Road is owned and maintained by the Vilage, liabilty against the County is predicated primarily on the theory that a special relationship to the defendant was created when , as a result of a letter written by plaintiff s mother to the County police deparment sometime in 2002 , complaining of vehicles speeding in the area a police officer came to her home and in response to her complaint about speeding and failure to stop at stop signs. She stated she was told that "he would .... he would tr to keep a car in the area" and in substance that he would make others at the precinct aware. The letter to the County has not been found by any of the paries and the identity of the police officer has never been ascertained. Plaintiffhas submitted an affidavit from a police sergeant that after a search of records he did not find any complaints and that it is impossible to lear the identity of the police officer who might have visited plaintiff. Plaintiff also posits that because the County is responsible for providing police services in the Vilage , and has loaned speed monitoring signs to the Vilage, liabilty on the par of the County exists. This claim may be disposed of quickly. Although labeled plaintiff as "joint enterprise liabilty" and " borrowed servant" theory, plaintiffhas presented no facts to support such a premise. Absent here are any facts to show a concerted action or course of conduct between the County and the Vilage which could have led to the accident. See Rodriguez v. City of New York, to this contention. 35 AD3d 702 (2d Dept. 2006). There is thus no merit [* 3 ] Defendant Vilage contends that its cross claim for contribution against the County should survive even a dismissal of plaintiff s claims , because dismissal would be based on Mowczan a special defense peculiar to the County, relying on v. Bacon 92 NY3d 281 ( 1998). It is well settled that sumar judgment is a drastic remedy which should not be Silman granted where there is any doubt about the existence of a triable issue of fact. Twentieth Century-Fox Film Corp. 140 AD2d 660 (2d Bhattiv. Roche, 3 NY2d 395 (1957); Lewis Dept. 1988). It is nevertheless an appropriate tool to weed out meritless claims. Desmond, Gray 187 AD2d 797 (3d Dept. 1992); v. Bankers Trust Co. of Albany, N A. , 82 AD2d 168 (3d Dept. 1981). Even where there are some issues in dispute in the case which have not been resolved , the existence of such issues wil not defeat a summar judgment motion if, when the facts are construed in the nonmoving par' s favor, the moving par Brooks would stil be entitled to relief v. Blue Cross of Northeastern New York, Inc. , 190 AD2d 894 (3d Dept.1993). Generally speaking, to obtain sumar judgment it is necessar that the movant establish its claim or defense by the tender of evidentiar proof in admissible form sufficient to warant the cour, as a matter oflaw , in directing judgment in its favor (CPLR 3212 (bJ), which may include affirmation. Olan deposition Farrell Lines, transcripts and other proof anexed to an attorney 64 NY2d 1092 (1985). Absent a sufficient showing, the court should deny the motion , irrespective of the strengt New York Univ. Med. Ctr., 64 NY2d 851 (1985). ofthe opposing papers. Winegrad [* 4 ] showing is made, however, the burden then shifts to the prima facie If a sufficient non-moving par. To defeat the motion for sumar judgment the opposing par must come forward with evidence to demonstrate the existence of a material issue offact requiring see also GTF a trial. CPLR 3212 (b); Zuckerman NY2d 965 (1985); v. v. Marketing, Inc. Colonial Aluminum Sales, Inc. , 66 City of New York 49 NY2d 557 (1980). The non-moving par must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. insufficient (Zuckerman 141 AD2d 513 (2d Dept. 1988). Conclusory allegations are Donato, v. and the defending par must do more City of New York, supra), than merely parot the language of the complaint or bil of evidentiar proof in support of the allegations. Inc., 207 A. Toth 2d 380 (2d Dept. 1994); Fleet Credit Corp. v. particulars. There must be v. Co. Harvey Hutter Carver Street Associates 191 AD2d 631 (2d Dept. 1993). If a par defends a motion by resort to CPLR 3212(t), that is, the par has a defense sufficient to defeat the motion but that the facts canot yet be stated, that par must be able to make some showing that such facts do in fact exist; mere hope that discovery may reveal those facts is insufficient. Companion Life Ins. Co. 35 AD3d All State Abstract Co., Pluhar 519 (2d Dept. 2006). Nor can mere speculation serve to defeat the motion. of South hampton, 29 AD3d 975 (2d Dept. 2006); Ciccone Town Bedford Cent. School Dist. , 21 AD3d 437 (2d Dept. 2005). However, the court must draw all reasonable inferences in favor of the nonmoving par. Corp., Nicklas Tedlen Realty Corp. 305 AD2d 385 (2d Dept. 2003); Rizzo v. Lincoln Diner 215 AD2d 546 (2d Dept. 1995). The role of the court in deciding a motion for [* 5 ] sumar judgment is not to resolve issues of fact or to determine matters of credibilty, but Barr 187 AD2d 553 (2d Dept. 1992); v. Albank 50 NY2d 247, County of Albany, v. Heller 307 AD2d 1024 (2d Dept. 2003); v. Dyckman simply to determine whether such issues of fact requiring a trial exist. 254 (1980); Barrett James Inc., 198 AD2d 330 Hicks Nurseries, (2d Dept. 1993). The Cour need not, however, ignore the fact that an allegation is patently false or that Sokol, Barclays Bank of NY. 196 AD2d 812 (2d Dept. 1993); 1987), such as when the affidavit in testimony. Wild Oaks Holding, Inc. See Vilage Bank an issue sought to be raised is merely feigned. opposition clearly contradicts earlier deposition Putnam Countr Club Central Irrigation Supply 128 AD2d 492 (2d Dept. 27 AD3d 684 Assocs., LLC, (2d Dept. 2006). Applying these well-established principles to the case at bar, the Cour finds that the submission by the County establishes entitlement to judgment thus shifting the burden to the opponent plaintiff to rebut the movants ' case by submitting proof in Zuckerman showing the existence of triable issues offact. v. Associated Fur Manufacturers, Inc., v. evidentiar form City of New York 49 NY2d 557 46 NY2d 1065 (1979). (1980); Friends of Animals Here, plaintiff has failed to establish the existence of triable issues of fact, the motion by the County therefore is granted and sumar judgment is granted in favor of the County. Municipalities are imunized from liabilty to third persons arising out of the performance of discretionar acts, and a municipality is not liable for the injurious consequences of an action even if resulting from negligence or malice. Such immunity can [* 6 ] be overcome upon a showing of a special relationship between the injured par and the municipality with the heavy burden imposed upon the injured par to establish the existence of such a relationship. v. Rodriguez Abraham v. City of New York County of Rockland 43 AD3d 1026 (2d Dept. 2007). The curent body oflaw on this Garrett issue stems from Cuffv. City of New York 2d253 (1983), See also 39 AD3d 21 (2d Dept. 2007); v. Holiday Inns Inc. 58 NY andPelaezv. Seide 69NY2d255 (1987), 2 NY3d 186 (2004). A special relationship between an injured par and a municipality can be formed: when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; when the municipality voluntaily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or when the municipality assumes a positive direction and control in the face of Pelaez a known blatant and dangerous safety violation. , at 199. To base a relationship on a breach of a statutory duty requires the governng statute to authorize a private right of action. No such claim is made here and there is no statutory authorization of a private right of action. v. Vilage of Hamburg, Abraham v. City of New York, Supra at 25; 196 AD2d 228 (4th Dept. 1994). A statute enacted for the health and Marino safety ofthe community at large does not confer a special duty on an injured person, v. Dwyer Berry Construction Corp. New York, Okie 146 AD2d 748 (2d Dept. 1989) cf Mclean v. City of 14 Misc. 3d 922 (Sup. Ct. NY Cty 2007) (special statutory duty found in favor of children in day care facilty J. [* 7 ] The second alternative, voluntar voluntar assumption of any assumption of a duty also fails. Here, there is no duty by the County and certainly no reliance by the plaintiffs upon performance by the County of any act. The facts disclose that the plaintiff was well aware of the dangers from the traffic in the area. The requisites for finding a special relationship based on the second alternative noted above e. voluntar assumption of a duty are set out in v. Pelaez Seide, supra 202. These requirements are (I) an assumption by the municipality through promises or actions of an affirmative duty to act on behalf of the injured par, (2) knowledge on the par of the municipality' s agents that inaction could lead to har , (3) some form of direct contact with the injured par and , (citing undertakng Cuff (4) that par' s justifiable reliance on the municipality' s affirmative v. City of New York, supra). Included in such requirements , but notably absent here , are the requirements of a promise or action in favor of the individual plaintiff, and justifiable reliance by the plainti on such affirmative undertaking. At best, the assurances of the police officer amounted to no more that a promise of stepped-up enforcement of existing traffic laws, which inure to the benefit ofthe public at large, not just to the injured plaintiff. Moreover, there is no evidence of any kind indicating that the infant was injured because he had relied on these assurances in traversing the roadway in question. It is tre that the County may not avoid responsibilty based on the failure to provide Cf DeLuca written notice of the problem if a special duty to the plaintiff has been created. v. County of Nassau 207 AD2d 428 (2d Dept. 1994); Poirer v. Schenectady, 85 NY2d 310 [* 8 ] (1995); Mastrianniv. CountyofSufJolk 91 NY2d 198 (1997); Ferrante v. County of Nassau, 301 AD2d 565 (2d Dept. 2003). However, the present case is clearly distinguishable from those where a duty was found. Taino Cases such as City of Yonkers 43 AD3d 401 (2d Dept. 2007), where the v. deceased was told that a police car was on the way to protect him from his assailant and Etienne v. New York City Police Department 37 AD3 d 647 (2d Dept. 2007) where decedent was told that "help was on the way " provide no avenue of liabilty to plaintiff. In both of these cases there was immediate and direct communication in close temporal proximity to the injur causing event and a positive promise of assistance. Thus, the Court finds that there was no assumption by the County though promises or actions of an affirmative duty to act on behalf of the plaintiff, no knowledge , other then generalized information oftraffic violations in the area, that inaction could lead to har and no proof of justifiable reliance on the County' York, supra; see also Laratro v. s affirmative undertaking. Cuff v. City of New City of New York 8 NY3d 79 (2006). In addition to the foregoing, there has been no showing that the presence of additional police protection in the area would have been sufficient to prevent this accident, as it is quite clear that liabilty, if there be any, lies with other paries and not the County. Finally, there can be no liabilty based on item 3 above , the assumption by the County of direction and control in the face of a known blatant and dangerous safety violation such as was present in trench J. Smullen v. City New York 28 NY2d 66 (1971) (open contraction site Plaintiff does not meet these latter requirements , as there is no evidence that the [* 9 ] County assumed control of the area from the Vilage. Since there is no dispute that the County does not own and is not responsible for Para Road , liabilty may not be based upon that theory. Monteleone v. Inc., Vilage of Floral Park 123 AD2d 312 (2d Dept. 1986). The contention of the Vilage that the County should remain liable to the Vilage for contribution also fails , notwithstanding, Mowczan v. Bacon , Supra. CPLR Aricle 14 , which enunciates principles of equitable contribution among multiple tortfeasors, ensures that defendants have their own right of apportionment based on degrees of fault. Here , unlike in Mowczan the plaintiffs cause of action fails because , as a matter of substative law , this Cour has determined that plaintiff has no cause of action against the County because the County was not negligent , not because of some unique defense available only to the County. Hence , if the County is not negligent as to the plaintiff, it canot also be simultaeously negligent as to the Vilage. The critical requirement for apportionment by contribution is that the breach of duty by the contributing par augmenting the injur for which contribution is sought. That requisite , which is absent here is the presence of a duty running from the contribution. Raquet must have had a par in causing or v. Braun contributing 90 NY2d 177 (1997); par to the par seeking Johnson City Central S.D. v. Fidelity and Deposit Co. Of Md. 272 AD2d 818 (3 Dept. 2000). The Vilage has not directed this Cour to any evidence that demonstrates the presence of a duty running from the County to the Vilage. See Linares v. United Management Corp., 16 AD3d 382 (2d Dept. 2005). Since the sole support for the cross claim by the Vilage to the County is the alleged negligence of the County, the cross claim must also be dismissed. - " [* 10 ] This shall constitute the Decision and Order of this Court. ENTER DATED: June 27 2008 TO: Jay D. Umans, Esq. HON. DANIEL PALMIERI Acting Supreme Court Justice Attorney for Plaintiffs 90 Merrick Avenue, 5 Floor East Meadow, NY 11554 ENTEJUL 0', 2008 Law Offces of Stanley E. Orzechowski, P. Co- Counsel for Plaintiffs 542 North Country Road NASSA,- St. James, NY 11780 Lorna B. Goodman County Attorney By: James N. Gallagher Attorney for County of Nassau One West Street Mineola, NY 11501 Joseph J. Ra, Esq. Town Attorney Town of Hempstead Attorney for Co-Defendant Town of Hempstead One Washington Street Hempstead , NY 11550 Law Offce of John Humphreys Attorneys for Co-Defendant Incorporated Vilage of Island Park 3 Huntington Quadrangle, Ste. 102S O. BOJ( 9028 Melvile, NY 11747 "vUt I 'r CONT CLERK' S OFRCE

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