Breslin v Incorporated Vil. of Rockville Ctr.

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Breslin v Incorporated Vil. of Rockville Ctr. 2011 NY Slip Op 32296(U) August 18, 2011 Supreme Court, Nassau County Docket Number: 15267/10 Judge: Anthony L. Parga 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 - NASSAU COUNTY Present: HON. ANTHONYL. PARGA Justice PART 8 GERALDINE BRESLIN Plaintiff INDE)( NO. 15267/10 -agai nst- MOTION DATE: INCORPORATED VILLAGE OF ROCKVILLE CENTRE COUNTY OF NASSAU , TOWN OF HEMPSTEAD , and MED- REAL PARTNERSHIP , L.P. 07108/11 SEQUENCE NO: 002 003 Defendants. Notice of Motion , Affs & Exs"'''''''''''''''''''''''''''''''''''''''''''''''''''''''........................ Notice of Motion, Affs & Exs.............................................. ............................ ....... Affirm atio n in Rep Iy Affirma tio Reply 0 p 0 n................ ............... ........... ............ n ............................ ................... positi Affirmation................................................................................................... Upon the foregoing papers , defendant County of Nassau s motion for summary judgment and defendant Town of Hempstead' s motion for summary judgment are both granted. , pursuant to CPLR 93212 The following facts are taken from pleadings and submitted papers and do not constitute findings of fact by this Court. This action is to recover monetary damages for personal injuries allegedly sustained by the plaintiff as a result of a trip and fall which took place on September 26 in front of 242 Merrick Road , in Rockville Centre , 2009 on the sidewalk , New York. Plaintiff alleges that she sustained juries as a result of a dangerous and defective condition on the sidewalk , and it is alleged that defendants County of Nassau and the Town of Hempstead were negligent in their ownership, maintenance , and repair of the subject sidewalk. The County of Nassau (hereinafter " County ) moves for summary judgment on the grounds that the County did not have jurisdiction over the location of the accident and that the County received no prior written notice of the defective condition as alleged by the plaintiff. In support of its motion , the County submits the affidavit of John Dempsey, Civil Engineer II with [* 2] the Nassau County Department of Public Works. Mr. Dempsey attests that he performed a search of the Nassau County Department of Public Works ' records and found that the location where plaintiffs accident is alleged to have occurred is not under the jurisdiction of the County of Nassau and that there was no prior written notice of any complaints for said location for the three years prior to the date of plaintiff's accident , September 26 2009. In addition , Mr. Dempsey attests that the County did not contract for any work at the su ject location , nor did the County make any repairs to same. In addition , the County submits the affdavit of Veronica Cox , who is assigned to the Bureau of Claims and Investigations in the Offce of the Nassau County Attorney. Ms. Cox attests that she personally searched the Nassau County Notice of Claim Files and Notice of Defect Files and found that the County did not receive any prior notices of claim or prior written complaints regarding the location of the plaintiff's accident for three years prior to , and including, the date of plaintiff's accident. As such , the County has made a prima facie showing of entitlement to summary judgment. The Town of Hempstead (hereinafter " Town ) also moves for summary judgment on the grounds that the Town did not have jurisdiction over the location of the accident and that the Town received no prior written notice of the defective condition as alleged by the plaintiff. In support of its motion , the Town submits the affidavit of Andrew A. Brust , Records Access Offcer of the Sidewalk Division of the Highway Department of the Town. In his affidavit , Mr. Brust attests that he performed a search of the Sidewalk Division records pertaining to sidewalk jurisdiction and determined that the site of the alleged accident is not under the jurisdiction of the Town. He also attests that the Town does not , and did not , own , control , operate manage the sidewalk at the subject accident location on or prior to September 26 , maintain or , 2009. He further attests that the sidewalk location is within the jurisdiction of the Incorporated Village of Rockville Centre. Additionally, Andrew A. Brust attests that he did a search of records of the Sidewalk Division regarding sidewalk repairs and found that the Town did not perform any affirmative acts with respect to the sidewalk at issue and did not repair , construct , inspect or design the sidewalk at the su ject accident location on , or for five years prior to , September 26 , 2009. He further attests that the Town did not contract with any entity to maintain , repair or that he work to that location for the same period of time. Finally, Mr. Brust attestsperform construction conducted search of the Sidewalk Divisions records regarding complaints/notices of sidewalk conditions. a The records searched consisted of written complaints or notices regarding sidewalk conditions received from the Town Clerk and the Highway Department. Mr. Brust attests that his search revealed that no written complaints or notices , or notices of claim , were received regarding the [* 3] location of plaintiff's accident for a period of five years prior to September 26 , 2009. As a general rule , liability for a dangerous condition on real propeliy must be predicated upon ownership, occupancy, control , or special use of the property. (See , Ellers v. Howitz 36 AD.2d 849 , 831 N. YS. 2d 417 (2d Dept. 2007); see also , Carlo Town ( f East Fishkill 19 AD. 3d 442 , 798 N. YS. 2d 64 (2d Dept. 2005); Horn v. Town of' Clarkmn 46 AD.3d 621 848 N. YS.2d 260 (2d Dept. 2007)). Where none is present , a party Family Ltd. Partnership, cannot be held liable for il~juries caused by the allegedly dangerous condition. (See , Dague v. 1818 New York Management Corp. 301 AD.2d 561 756 N. YS.2d 51 (2d Dept. 2003); also , Flynn v. Hanken 17 AD. 3d 523 , 793 N. YS. 2d 162 (2d Dept. 2005); see Horvath v. Rose , 261 AD.2d 438 , 690 N. YS.2d 288 (2d Dept. 1999)). In order for a plaintiff to demonstrate a prima facie case of negligence against a municipality, the plaintiff must first demonstrate the existence (Murray v. Wolff, 242 AD. 2d 265 , 660 N. YS. 2d 732 (2d Dept. fNew York 190 AD. 2d 663 593 N. Y. 2d 286 (2d Dept. 1993)(holding that the defendant municipality, which did not own the roadway where the accident happened , owed no duty to plaintiff because the municipality did not have jurisdiction of a duty owed to the plaintiff. 1997); see also Schulman v. City over the location of the accident)). The affdavit of John Dempsey indicates that the County did not have jurisdiction over the sidewalk where the plaintiff fell , and the affidavit of Andrew Brust indicates that the Town did not have jurisdiction ovcr the sidcwalk where the plaintiff fell. As such , said defendants owed no duty to thc plaintiff herein. In addition , Section 12- 0( c) of the Administrative Codc of Nassau County provides that no civil action may be maintained against the County of Nassau for damages or injurics to persons sustained by reason of a defectivc highway, street or sidewalk unless written notice of the defect was given to the County of Nassau. Similarly, Town Law 965-a(2), as well as Section 3 of the Code of the Town of Hempstead , provide that no civil action shall be maintained against the Town for injuries or damages to persons sustained by reason of a defective sidewalk without service of prior written notice of the defect upon the Town Clerk or the Town Commissioner of Highways. Since neither the County nor the Town received prior written notice of the defect , and as neither caused or created the defect through an affrmative act , they cannot be found liable to the plaintiff for her inj uries herein. AD. 3d 577 , 787 N. YS.2d 376 (2d 757 N. YS. 2d 585 (2d Dept. 2003)). Dept. 2004); (Galante v. Vilage of Sea Clff!' Berner v. Town ( fHuntington 304 AD. 2d 513 Defendants County and Town have made a prima facie showings of cntitlement to summar judgmcnt. In opposition to thc motion , plaintiff has failed to producc cvidentiary proof in admissible form suffcient to require a trial of material questions of fact on which she rcsts hcr claim. (See , Zuckerman v. City of New York 49 N. Y2d 557 (I 980)). Where thc municipality ,\' ~~~ , " [* 4] '\ ( establishes that it lacked prior written notice the burden shifts to the plaintiff to demonstrate the applicability of one of two rccognized exceptions to the rule - that the municipality affrmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality. (Yarborough v. City of New York 10 N. Y3d 726 , 822 N. 2d 873 (2008); City of New Rochelle 71 AD. 3d 717 , 718 , 895 N. Y.S.2d 727 (2d Dept. 2010)). Denio Opposition was submitted to the within motions only by defendant MedReal Partnership (hereinafter " Med- Real" ). Med- Real , however , has failed to raise a triable issue of fact that the County or Town had prior written notice of the defect , that the County or Town caused or crcated the condition , or that the County or Town was using the sidewalk at issue for a special use. Mcd- Real has also failed to submit any evidence to demonstrate that the location of plaintiff's accident is within the County and/or Town s jurisdictions. There is also no evidencc before the Court that the County or the Town had prior written notice of the alleged defect or that the County or Town created the condition at issue through an affrmative act. (See , Kiszenik v. Town ~fHuntington 70 AD.3d 1007 895 N. YS. 2d 208 (2d Dept. 2010); AD. 3d 733 88 N. YS.2d 205 (2d Dcpt. 2009); 787 N. Y.S.2d 376 (2d Dept. 2004); Groninger v. Vilage ~f Mamaroneck, 67 13 AD. 3d 577 Berner v. Town of Huntington 304 AD.2d 513 , 757 Galante v. Vilage ~fSea Cliff, YS. 2d 585 (2d Dept. 2003)). With respect to Medsummary judgment are premature , the " Real' s argument that thc motions for mere hope or speculation that cvidcnce sufficient to defeat a motion for summary judgment may bc uncovered" by further discovery is an insuffcicnt basis for denying the motion. (Woodard v. Thomas 2010 WL 4008451 (2d Dept. 2010); Simpson v. New York City Transit Authority, 44 AD. 3d 930 , 844 N. YS.2d 108 (2d Dept. 2007); Ligh(foot v. City ~fNew York 279 AD.2d 457 719 N. Y.S.2d 99 (2d Dept. 2001); Lopez v. WS Distribution, Inc. 34 A. 3d 759 , 825 N. Y.S. 2d 516 (2d Dept. 2006)). Accordingly, defendants County of Nassau and the Town of Hempstead' s motions for summary judgment are granted , and the plaintiff's action , together with all crossclaims dismissed as against defendants County of Nassau and the Town of Hempstead only. , is Dated: August 18 , 2011 Jv\. Anthony L. Pafga , J, Cc: Mulholland , Minion , Duffy, Davey, McNiff & Beyrer 374 Hilside Avenue Williston Park , NY 1 1596 \4) . ENTE AUG ? 2 2011 COUNT COUNTY CLERK' S OFFICE NASSAU [* 5] John Ciampoli , Esq. County Attorney of Nassau County Attn: Kristina Milone , Esq. One West Street Mineola , NY 11501 Joseph .J Ra , Esq. Town Attorney Town of Hempstead 1 Washington Street Hempstead , NY 11550 Goldberg Segall a , LLP 200 Old Country Road , Suite 210 Mincola , NY 11501 McLaughlin & Stern , LLP 260 Madison A vcnue New York , NY 10016

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