Vishnick v Botesazan

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Vishnick v Botesazan 2011 NY Slip Op 33174(U) December 5, 2011 Supreme Court, Nassau County Docket Number: 11104/08 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] SCAtSHORT FORM ORDER SUPREME COURT - ST ATE OF NEW YORK - NASSAU COUNTY Present: HON. ANTHONY L. PARGA .Justice ----------- X PART 8 Hot) SHERRI VISHNICK, Plain tiff , 1/ O 11 C9/1 ). INDEX NO. XXX -against- MOTION DATE: 10/20/11 SEQUENCE NO: OOS FRED BOTESAZAN Defendant. --------------------------------------------------------------------- X Notice of Motion , Affs. & Exs............................................................................................ Affidavit in Opposition , Aff & Exs ................................................................................... Rep Iy Affi rm a tio n........................................................... .............................. "..................... Upon the foregoing papers , it is ordered that the motion by plaintiff to vacate the order of dismissal , dated April 8 , 2011 , which was granted on default without opposition , is granted to the extent that the order of April 8 , 2011 is hereby vacated and superceded by this Order , and defendant's motion for summary judgment , annexed as Exhibit A to defendant's Affidavit in Opposition , is hereby restored and considered together with the parties ' submissions herein, Upon all of the submissions before this Court , defendant' s motion for summary judgment is granted and plaintiff's action is hereby dismissed. In this action , plaintiffs seek to recover money damages for injuries allegedly sustained on August 4 , 2007 when plaintiff Sheri Vishnick tripped and fell on the sidewalk abutting 55 Middle Neck Road in Great Neck , New York. The action was previously dismissed against defendant ViJlage of Great Neck Plaza defendant Fred Botesazan voluntarily discontinued his cross- , and claims against the Village of Great Neck Plaza. Defendant Botesazan is the owner of the single family residence located at 55 South Middle Neck Road in the Village of Great Neck Plaza. Said premises is on a triangular shaped [* 2] lot which abuts both Schenck A venue and Middle Neck Road. Plaintiff" allege that defendant Fred Botesazan caused , created and/or permitted an unsafe condition to exist and allowed the sidewalk to become and remain in a broken , uneven , depressed , dangerous and defective condition. Plaintiff further aJleges that the dcfendant Fred Botesazan violatcd Section 185and 185- 1 of the Village Code of the Village of Great Neck Plaza (hereinafter referred to as Village Code Defendant Fred Botesazan movcd for summary judgment on liability grounds , by prior motion dated February 4 2011. Plaintifftailed to submit opposition to same and defendant's motion for summary judgment was granted , without opposition , by order dated April 8 20 I Plaintiff moves herein to vacate said order , as counsel for plaintiff affirms that his lirm never received the motion papers in the mail. Counsel affirms that his offce moved locations and submits evidence that after notifying defense counsel of the new address , scveral itcms of mai were incorrectly sent by defensc counsel to plaintiff's counsel' s former address. In light of same the April 8 , 2011 order by the undersigned is hereby vacated and defendant' s initial motion for summary judgment , annexed to his opposition papers as Exhibit A , is hereby restored and considered together with the parties submissions herein. In support of defendant Botesazan s motion for summary judgment , he submits , among other evidence , an affidavit whercin he attests that hc is the owner of the property which abuts the sidewalk where the plaintiff fell. I-Ie attests that he had no notice of thc alleged defective condition on the sidewalk and that neither hc , nor anyone on his behalf, ever performed any repair to the sidewalk at issue. He also attests that he did not use the sidewaJk for any " use. " Further , speciaL at his deposition , defcndant Fred Botcsazan testified that he has nevcr rcsidcd at the property, but instead has always rented the property. He also testified that no one had rentcd the property since 2005. In accordance with same , defendant Botesazan submits an additional nearly identical , affidavit in opposition to plaintiffs application herein in which he has " never states that he owned or been in control of the portion of sidewalk were plaintiff alleges to have sustained injuries due to a fall." As such , defendant Botesazan argues that he had no noticc of the condition at issue , did not cause or cre , and is entitled (0 summary judgment. tte the condition [* 3] Defendant Botesazan has cstablished a prima facic showing of entitlement to summary judgment. The proponent of a summary judgment motion " must make a prima facie showing of entitlement to judgment as a matter of law , tendering sunieient evidence to demonstrate the (Alvarez v. Prospect Hosp. 68 N. 2d 320 (1986)). absence of any material issues of fact." Once the movant has demonstrated a prima facie showing of entitlement to judgment , the burden shifts to the party opposing the motion to producc evidentiary proof in admissible form suflcient to establish the existence of material issues of a fact which require a trial of the action. (Zuckerman v. City ( f'New York 49 N. Y.2d 557 (1980)). Plaintiff argues that there are questions offact that warrant thc denial of the defendant's motion , including statutory violations of the Village Code pertaining to the abutting landowner responsibility for the maintenance of sidewalks. Village Code Section 185- 1 states that an owner shall at all times keep such sidewalk in good and safe repair.. " and Village Code Section 18535 states that the " Superintendent of Public Works shall havc thc powcr to requirc the owner or occupant to construct and/or repair , wholly or partly at his expense , sidcwalks... adjoining said owner s or occupant' s land. " Plainti IT contends that regardless of whether the defendant owned" the sidewalks abutting his propel1y, he had a statutory duty to maintain and repair said sidewalks. Plaintiff argues that a question of fact exists as to whether defendant Botesazan property was in violation of the statutory requirement and whether such violation was a competent producing cause ofthc plaintiff's injuries. Plaintiff further contends that defendant Botesazan rcpaired the sidewalk at issue prior to the happening of this accident. A review ofdekndant Botesazan s deposition transcript and affdavits , however , indicate that defcndant Botesazan testified that he repaired thc sidewalk abutting Schenck Avenue after being notificd by the Village to do so in 2005 , due to a trce which brought up " the sidewalk. Defendant Botesazan testified that he was not noti fied to fix or make repairs to any portion of the sidewalk abutting Middle Neck Road. He similarly attests that neither he , nor anyone on his behall made rcpairs and/or replacemcnts to the sidewalk abutting the premises on Middle Neck Road , where the plaintiff alleges that she fell. FUl1hermore defendant Botesazan testified that he did not rcside at the home , but collected rent from thc tenants who lived there prior to 2005. He also tcstified that the tenants were responsible for [* 4] maintaining the grass surrounding the premises and on botl Sid S of the sidcwalk , and when the premises were unoccupied , someone would mow the grass n hIS behalf. Plaintiff Sherri Vishnick testified that she had seen he defect that allegedly caused her fall on prior occasions for several months before her accide 1t and Bernard Vishnick testified that the alleged defect was there for ten months. As such , plain iff argues that defendant Botesazan had constructive notice of the defect for a sufficient length f time to discover and remedy it. An abutting landowner wi!! not be liable to a pcdest ' ian injured as a result of a defect on a ondition or caused the defect to . public sidewa\k unless the landowner created the defective occur because of some special use of the sidewalk , or if a local ordinance or statute specifically charges the abutting landowner with a duty to maintain and repair the sidewalks and imposes 41 AD. 3d 539 838 N. Y.S. Felshberg 2d 597 (2d Dept. 2(07); 26 A. D. 3d 460 , 810 N. Y.S. 2d 502 (2d Dept. 2006); 2d 470 (1996); Diaz v. v. (Jacohs liability for injuries resulting from a breach of that duty. v. Vilage oj'Rockvile Centre Emmons Ave. Hospitality Corp. Hausser v. Guinta 88 N. Y.2d 449 , 669 Vieni 303 AD. 2d 713, 758 N. Y.S. 2d 98 (2d Dept. 2(03); Dufrane v. Rohideau 214 AD. 2d 913 , 626 N. Y. see also, 2d 292 (3d Dept. 1995)(an exception to thc prohibition against liability upon an abutting landowner may bc incurred where a statute specificalJy charges an abutting landowner with a duty to maintain and repair the sidewalk ancl provides that a breach of that duty will result in liability). Where a local ordinancc imposes upon the landowner a duty to maintain the sidewalk , but does not expressly impose tort liability upon the landowner for a violation of that duty, the landowncr owes no duty to the plaintifTto keep the sidewalk in good repair and cannot be subject to tort liability for any a!leged breach of such a duty, where the landowner neither created thc condition nor caused the defect to occur by some special use of the sidewalk. (Fore/Ii v. Rugino 1988); See also , Lodato v. Town o.fOyster Bay, 139 A. D.2d 69 A. 489 526 N. Y.S. 2d 847 (2d Dcpt. 2d 904 414 N. 2d 214 (2d DepL 1979)). In the instant matter , the Vilage Codc I )r the ViIJage of Great Neck Plaza places does not impose .tort liability on adjoining landowners t )r claims for damages or injuries that arisc from defects in the sidewalk. (See , Marx v. Great Neck Park District 29 Mise. 3d 1217(A), 2010 WL 4273810 (Sup. Ct. Nassau Cty. 2010). As the Village Code does notplacc tort liability upon [* 5] abutting landowners , the abutting landown' r may only be held liable for injuries to pedestrians if it can be established that the landowner ca sed or created the defective condition in the sidewalk (Id. , see also , Felshberg v. se of the sidewalk. or caused the condition through a special Emmons Ave, Hospitaliy CO/p. 26 A.D. 3 460 810 N. 2d 502 (2d Dept. 2006)). There is no evidence in the submissions before this Court that defendant Botesazan caused or created the alleged defective condition in the sidewal at issue or caused the condition through a special use of the sidewalk. Accordingly, defendant l otesazan cannot be held liable for the plaintiff's accident or injuries hcrein. As such , :I defendant's motion for s l1mary judgment is granted in its entirety, and the plaintiff's action is hereby dismissed. Dated: November 30 , 2011 Jsi Anthony L. Par a , Cc: Law Offices of Robert S. Fader 99 Tulip Avenue , Suite 401 Floral Park , NY 11001 Mahrdad Kohanim , Esq. 595 Stewart Avenue - Suite 410 Garden City, NY 11530 L. ENTERED DEC 0 5 2011 NASSAU COUNTY COUTY CLIRK" OFFtCE

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