Maloney v Farris
Annotate this Case
Download PDF
Maloney v Farris 2012 NY Slip Op 31724(U) June 19, 2012 Supreme Court, Suffolk County Docket Number: 15503/2002 Judge: Paul J. Baisley 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] Shon Form O,der SUPREME COURT ~ STATE OF NEW YORK CALENDAR CONTROL PART ~SUFFOLK COUNTY PRESENT: HON. PAUL J. BAISLEY, JR., J.S.c. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ THOMAS MALONEY and PATRJCIA MALONEY, Plaintiffs, [NDE)( NO.: 1550312002 CALENDAR NO.: 200702469MV MOTION DATE: 4/23/2012 MOTION SEQ. NO.: 006 CASEDISP -against~ FRANKLYN A FARRIS, Suffolk County Public Administrator, as Administrator of the Estate of FREDERICK OLiTA a/kla FRED OLlTA, Deceased and OLiTA REAL ESTATE, PLAINTIFFS' ATTORNEY: DELL & LlrrLE, LLP 5 Orville Drive, Suite 100 Bohemia, New York 11709 DEFENDANTS' ATTOR1'\'EYS: RJCHARD T. LAU & ASSOCIATES ~~~~~~~~~~~~.~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ 300 Jericho Tpke., Suite 260 Jericho, New York 11753 FRANKLYN A. FARRJS, Suffolk County Public Administrator. as Administrator of the Estate of FJEDELMAN & MeGA W FREDERICK OLiTA a/kIa FRED OLlTA, Deceased Two Jericho Plaza, Suite 300 and OLiTA REAL ESTATE, Jericho, New York 11753 Third-Party Plaintiff, Defendants. -againstTHE SUFFOLK COUNTY WATER AUTHORJTY, Third-Party Defendant. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Upon tile foll()wir\g papers 1l1l111heredI to 11 r~ad on this motion for summary judgment : Nolic~ or Motion! Order [0 Show CilUS~ ilnd supporting pap~rs....l..:..Ui..-;Notice "fC1o.l~ MOlion ,lIIlt _~[II'P'"tiiig I'-'j!cu_. Answc:ring AflId(lvits and SLJpporting papers_; Replying I\nid'1Vits and supporting paper.' _. Otht:r_. (and after henring counsel in support nnd opposed to the Illotion) il is. ORDERED that this motion by defendant/third party plaintiff Franklin A. Fanis, Suffolk County Public Administrator, as Administrator of the Estate of Frederick Olita aIk/a Fred Olita, Deceased and Olita Real Estate (Olita) seeking an order pursuant to CPLR Section 3212 granting summary judgment dismissing plaintiffs' complaint or in the alternative grantingjudgment against third party defendant Suffolk County Water Authority (SeWA) with respect to the third party complaint is detennined as follows: On February 28, 2000 plaintiff Thomas Maloney (Maloney) claims to have sustained injuries as a result of falling on a public sidewalk outside premises owned by defendant Olita. Plaintiff Maloney claims that his foot became caught in a depression, described as a hole, in the concrete sidewalk. On November 8, 1999 and November 9, 1999 the third party defendant sew A performed [* 2] '!'!lillIIlIS Alaloli".\' ('I "I, \' Franklyn /1. FmTis el af. lud!.:.."'i No. 155()3!200] excavation work 011 the sidewalk for the purpose of turning olTthe water service for a defunct busincss. sew A workers used a jackhammer to create a 12' by 12' hole in the sidewalk 'where the eurb box was accessed and replaced. The workers backfilled the hole with dirt that had been removed and tamped a cold (asphalt) patch flush with the surface of the sidewalk. Plaintiff claims that the cold patch became dislodged creating a hole above the curb box and that he stepped into the depression while he was walking towards his car. Plaintifrs complaint alleges that defendant Olita failed to maintain the sidewalk area in a reasonably safe condition. Defendant/third party plaintiffs third party complaint seeks indemnification claiming that the third party defendant SeWA's negligent failure to maintain the sidewalk was a proximate cause of the injuries sustained by Maloney. Defendant's motion seeks an order granting summary judgment dismissing plaintiffs complaint claiming that thcre is no evidence in the record to prove that Olita had prior actual or constructive notice of the alleged dangerous condition and defendant cannot therefore be found responsible for the injuries sustained by Maloney. Defendant claims that the alleged defect, alleged to have resulted from the cold patch becoming dislodged, was created by sew A and that Olita had no notice of the sidewalk condition prior to Maloney's fall. It is the defendant's position that Smithtown Code does not impose any additional duty upon Olila under these circumstances since it~ in fact, a defect existed, such defect was created by sew A and Olita had no prior notice of it. in opposition plaintiffs submit an attorney's affinnation and claim that substantial issues of fact exist concerning whether defendant derived a special use of the sidewalk which imposes an additional duty to maintain the sidewalk in a reasonably sate condition sufficient to require a plenary trial. Plaintiffs claim that ['tctua] issues exist concerning whether the excavation work performed by sew A was done at the request of or for the benefit ofOlita. Plaintiffs assert that Olita derived a special use from the curb box unrelated to the public's use orthe sidewalk and therefore Olila had a duty to maintain the area so that pedestrians could safely use the sidewalk. Plaintiffs also claim that the Smithtown Code imposes a duty upon the landowner to inspect and maintain the sidewalk and argue that CVCll though 110 witness has come forward to provide prior notice of the defect, circumstantial evidence exists to impugn constructive notice based upon the more than three month time period from the 3pplication of the cold patch to plaintiffs f~lll. In partial opposition to dclcndan1's motion, third party defendant SCWA submits an attorney's affirmation and joins in defendant's application to dismiss the complaint based upon the abscnce 01" prior notice of the alleged defect. However sew J\ argues that i r the summary judgment motion is not granted dismissing plaintiffs' complaint, no bnsis exists to grant judgment against SCWA on the third party complaint since there is no evidence submitted to prove that a defective condition existed and no evidence to indicate 1ha1sew A had prior notice of any alleged defective condition whieh would impose a duty on sew A to return to the area. The proponent or a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material Issues of fact from the action. To grant summary judgment it must clearly appear that no matenal and triable issue of fact is presented (Sillman v. 2(J" Centllly-Fox Film Corporation. 3 NY2d 395, 165 NYS2d 498 (1957)). The moving pany has the initial burden of proving entitlement to summary -2- [* 3] T!lomas Ma/filwy iii II!, V FranklYIl A. Farris el al. (lides .!l/o. j 551)3!]IJ()] judgment (Winegrad v, NYV Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985)). ,,"ailurcto make such a showing requires denial of the motion, regardless of the sufficiency ofthc opposmg papers (Winegrad v. NYV i\;fedica/ Center, supra.: l;'riends of Animals v. Associated Fur Mal1l!fhctllrers. 46 NY2d 1065,416 NYS2d 790 (1979)). Once such proof has been offered the burden shifts to the opposing party, who, in order to defeat the motion for summary judgmenll1lUst proffer evidence in admissible form and must "show facts sufficient to require a trial of any issue of fact" (CPLR Section 3212(b); Zuckerman v. CilyafNew York. 49 NY2d 557, 427 NYS2d 595 (1980)). The opposing party must present facts suflicient to require a trial of any issue of fact by producing evidentiary proof in admissible form (Joseph P. Day Realty Corp. v. Aeroxon Products, 148 AD2d 499. 538 NYS2d 843 (2nd Dept., 1979)) and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Casfro v. Uberty Bus Co., 79 AD2d 1014,435 NYS2d 340 (2n<! OepL 1981)). Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the eourt to direct a judgment in favor of the movant as a matter of law. In order to establish tort liability the plaintiff must demonstrate the existence and breach of a duty owed to him by the defendant (Palka v. Edelman, 40 NY2d 781,390 NYS2d 393 (1976); Palsgrqfv. LJRR, 2-18NY 339 (1928); Prosser, "Torts", 4th Edition Sections 30. 41-42 & 53)). lie must further demonstrate that defendant's acts or omissions which constituted such breach were a proximate eause of plaintiffs injuries (Sheehan v. City of New York, 40 NY2d 496, 387 NYS2d 92 (1976». A landowner owes a duty to another on his land to keep it in a reasonably safe condition (Basso v. Miller, 40 NY2d 233, 241, 386 NYS2d 564 (1976); Smilh v. Taylor, 279 AD2d 566, 719 NYS2d 686 (2nd Dept., 2001)). A party who possesses real property either as an owner or a tenant, is under a duty to exercise reasonable care to maintain that property in a safe condition, and this duty includes the undertaklllg of minimal precautions to protect members of the public from the reasonably Coreseeable acts of third persons (Martinez v. Santoro, 273 AD2d 448. 710 NYS2d 374 (2'" Dcpt., 2000); Sadie,' v. Tow/1 o(Hu,.fey, 288 AD2d 805, 720 NYS2d 613 (3'd Dcpt., 2001)). Liability for a dangerous condition on property is predicated upon occupancy, ownership, control or a special use of such premises. The eXistence of one or more of these elements is sufficient to give rise to a duty of care. Where none is present a party cannot be held liable for jl~jury caused by the delcet ivc or dangerous condition on the proper1y (Balsam v. Delma Hnginecring Corp" 13~ ALJ2d 292, 296-297. 532 NYS2d 105 (1" Dcpt., 1988); lcave to appeal denied 78 NY2d 783 (1989): Pappalardo v. NY llea/th & Racket ell/h, 279 AD2d 134,718 NYS2d 287 (1'1 Dept., 20(0)). It is well sell led that the owner or occupier of land abutting a public sidewalk does not owe a duty to the public solely arising from the location orthe premises, to maintain the sidewalk in a safe condition (Nlle:·;i v. City q(New York, 205 AD2d 370. 613 NYS2d 175 (1St DepL 1994». Liability arises only irthe abutting owner or lessee created the defect or used the sidewalk for a special purpose (Granville 1'. Cify (?lNel1' York, 211 AD2d 195, 627 NYS2d 4 (151 DepL 1995)) such as when an appurtenance is installed for its benefit or at its request (KCI/!/inan v. Silver, 90 NY2d 204. 659 NYS2d 250 (1997) which contemplates a purpose different from that of the general public (Otero v. City of Nelli York, 213 AD2d 339. 624 NYS2d 157 (1 ~t DepL 1995)). Such spec13l use then gives rise to maintenance responsibilities not otherwise imposed upon a landowner (Sanrorelli v. City (?fNew York. 77 AD2d 825, 430 NYS2d 618 (1st Dep!.. 1980)). ~ 3- [* 4] Tlwllws MIi/fill,'Y iii ill, l' l·huIA'lviI/1. r"rris el Index .No 15503/]O()] ill. Smithtown Town Code Section 245-5 provides: Owners. occupants, lessors, or persons in control of all buildings or structures used for commercia! purposes and the owners or occupants of lands fronting or abul1ing on any street or highway in a business or industrial district shall maintain and repair the sidewalks adjoining their lands and shall keep such sidewalks free and clear of and from snow, ice and all other obstructions. Such owner. occupant or lessor, and each of them, shall be liable for any injury or damage by reason of omission, failure of negligence to maintain or repair such sidewalks or to remove snow, ice, or other obstructions therefrom. In a slip and fall case a plaintiff may only recovcr when he is able to show that the defendant eithcr crcated the condition which caused the accidcnt or had actual or constructive notice of the condition (Anderson v. Klein Foods, 139 AD2d 904, 527 NYS2d 897 (4111 Dept., 1988); affinned 73 NY2d 835 (1989): Moss v. JNK Capital, 211 AD2d 769, 621 NYS2d 679 (2'" Dept., 1995)). Constructive notice may be inferred where the alleged defect was visible and apparent for a sufficient length of time prior to the accident so as to permit the defendant to discover and remedy it (Fasolino v. Fashion Bug, 77 NY2d 847, 567 NYS2d 640 (1991)). The record reveals that on November 8,11nd 9111, a 1999 SCWA workers excavated a portion of the sidewalk adjacent to defendant Olita's premises for the purpose of accessing a curb box to shut off water service for a defunct business. The evidence further reveals that on February 28, 2000 the plaintifT fell in the hole created as a result of the SCW A excavation when Maloney stepped into the depression where the cold patch of asphalt applied by SCWA workers had become dislodged. There is no evidence presented to establish that the defendant Olita had prior notice that the cold patch had become dislodged prior to plaintiff's fall. The only evidence submitted with respect to notice was the plaintilTMahoney's deposition testimony in which he stated that he visited the area "once every three weeks" and had not observed the hole prior to falling down. While generally the law imposes no duty upon an owner or occupier ofland abutting a public sidewalk to maintain it, certain exceptions exist imposing a duty on the owner to maintain the sidewalk in a reasonably safe condition in instances where installation of an appurtcnance is done for the benefit of the adjoining landowner (see Santorelli v. City ojNew York, .I'1I/)ra.,' Thomas v. '1i'iang/e Rm/ly ('0, 255 AD2d 153,679 NYS2d 394 (1 '1 Dept., 1998» or where a town code provision imposes a duty. Pursuant to either exception the landowner must have eitller actual notice of the dangerous condition or constructive notice of the defect. In this case. even assuming that the defendant had maintenance responsibilities as a result of the ··special duty" to maintain the public sidewalk (or pursuant to Smithtown Code Section 245-5), there is no evidence in this record to support plaintiffs claim that the defendant Olita had prior actual or constructive notice of the sidewalk defect prior to Mahoney's fall. Although the plaintiff concedes the absence or notice in the record, Mahoney argues Olita should have discovered the defect during the 14 week period between excavation and the rail and therefore the Court should charge defendant with constructive notice of the holc. Imposing such a duty is clearly beyond the evidcnce submitted by the pal1ies which reveals no proof that the hole existed within a time period where the defendant could have reasonably discovered and fixed it. Accordingly absent proof of any prior notice of the claimed defective condition, no basis exists to sustain plaintiffs' claims against the -4- [* 5] FIr/IIIIIIS ,\1(11011".)' ('I (II. ,. I-'r"Wlkl.1'I1 ,-I. h,,-,.i,\' ('/ a/, Index No !5503/]1!1!] landowner and the defendant" s motion for an order granting summary judgmcnt dismissing plaintiffs' complaint must be granted. Accordingly it is ORDRH.RD that defendant's motion for all order pursuant to CPLR Section 3212 is granted. The complaint against the defendants is hereby dismissed; and it is further ORORREO that the Court sua sponte hereby dismisses the third pany complaint against third party delcndant SCWA as thc c1allns asserted against the third party defendant arc derivative of the claims asserted in the main action which has been dismissed. The lhird party complaint is therefore also dismissed. PALl J. BAlSlEY, JR. Dalcd: June ]9,2012 J.S.c. -)-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
