Yancy v Tuckahoe Hous. Auth.

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Yancy v Tuckahoe Hous. Auth. 2014 NY Slip Op 34004(U) December 4, 2014 Supreme Court, Westchester County Docket Number: 60277/2014 Judge: William J. Giacomo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 12/04/2014 03:42 PM NYSCEF DOC. NO. 26 INDEX NO. 60277/2014 RECEIVED NYSCEF: 12/04/2014 To commeru;e th-0! statutory time fpr appeals as of right (CPLR 5513£aJL ypu are ~dvised to serve a copy of tbfs ordet\ with not~ce of entry. upon au parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. WILUAM J, GIACOMO~ J,S,C, ,,..,,..,,..,,_..YYYYYYYYYYYw,,..,,..,,..,,..YYYYYYYYYWW,,.._YYY""""""""wv.,·O''''"""''"''''"'''''''•'•'""''''"""'''''''''''''"""X GOREY '{/.\NGY, Plaintiff, ~ noe x No. 6027712014 OEClSlON & OROER TUCKi\HOE HQUStNG AUTHORITY a/Kia S.ANFOHO GAFZDENS anti VILLAGE OF TUCKJ.'\HOE, Defendant ----------w,,..,.,......... , •.•.•.•.,.,............... _ _. _____ y _______ """'''''''''''""""w----·---------w---YYX The fol!ovling papers nurnberod 1 to 5 "h'ere read on defendant \/Hlage of Tuc~ahoe ·s ("The \/l!!age") motion seeking an order of surnmary judgment dismissing the compl~lnt: PAP~R§J:UJM.eNR.f;Q Notioe of t\4otion/AftidavltJE:xh%blts --·-·--"' .........................._...............................................................1:~ ,A.tflrrnation· in Oppositlon...........""'____________.........................------·-----·-------------..........................._........4.. Reptay ,AJfirmat~on ...........................___....................................._____________.................................,_...J5 P~alnMf commBnced this persona! inj1.Jry action on July 15, 2014, lssue .Nas joined ov th~ vmage on'August 6, 2014, The ViHage no\<V moves for summary judgment dismissing the comp~aint on the ground that it had no prim written noticB of the defective condition \>\1'hich caused p®ainhff s faR. The \ll!!age argues that vmage La\<V § B-€28 requires prior written noHce of a defect before plaintiff can recover pen,onal injuries. In support of !ts motion, the vmage subrnits the affidavit of VWage Chwk Susan Ciamarra who states tf)at she searched the VH!ag\'<3's [* 2] prlor >sNf~tten nohce books and did not find any written notice of the c«.:implalnts mgardfrig the s:id{:;\va!k in questiort She also searched the \/Wage records and doterrninect that the \"lHage ~wd not done <my work or repairs at that location prior to plaintiffs fat!. !n oppos!Uon, p1alntlff submits .his attorney's affinnatkm, ~n his attorney aftlrmatlon, plaintiff argues that dGsplte Ms, Cit-unarra;s statements there are stH! questkms of fact regarding th~:r efficacy and parameters of her search, the manner !n vvh!ch the search \Nas: performed, the amovnt oftime the search took, the organization of the records in question, how notic-es anct t-::omplaint$ am received, tlocurnented and reviewed and filed, P~aintlffs attorney attlrmat!on also notes that ki the complaint it is alleged that the V'Hlage was nogligont in "causing , _ , the dangerous condition to be and remain on the pmrnises LY' and ''in cw...!sing the prernises to be in a dangerous and trnp-·like c;cndiUon['} and "in causing then) to be a dangGrotJS condlUon for an umeasoriahie period of time, which l-::onstituted a rn)isance and/or hazard, then":J-by rendering the pr0rnises dangl:.rrous and unsafo; ff' Therefore, plaintiff cJi:·lims tne \/Hlago has the burden to estabHsh that it did not create the condition vvhich caused plaintJff's fa!!. A party rnoving for surnmmy judgment must assemble ~~fflrmativ'fl prooHn establish its enm!ernent to judgment as a matter of law. (Zuckerman v, City of At. ~t_, 49 NY2d ~557 [i9BO]}. In order tci rneet it$.btm$en of entitlement to surnmaryjudgrnent as a rnatter of k~w, the City must establish that it did not receive prior written notice nfthe defect that at!eged!y caidsed the in$ur~d plaintiff's fa!! or that it did not create the dangerous condlhon. (SBB Kravetz v Coun(v ofS.uffo/%;, 40 AD3d '1042 tT::j Dept 2007]; ,Forroin:1 v. Countv' ofOram;;e, 34 l\03d 724 [Z'!'l Dept 20061). . , , . "VVhere, a~ h~re, a munlcipaHty has enacted a pdor ~vrmen notice statute, it ni:ay not be subjected to HabWty for injuries caused by an lmpr(>µer!y maintained street or slde~valk uniess it has received \\•Titten notice of the defect, or an exception to the v-lritten noticB reqdmrnentappfres" (Car:lucciv Villsgc.~of Sca.r:w:Jafo, 104 AD,3d 797, 9(51 N,Y'.S2d 318 1 fZ~ Dept 2013J citlhg ArrwbNs v City of Buff~~Jo, 93 N't2d 4T '1 ['1999]; A1h7er v ViHm.w of E .;arr~ptat\ 88 .i\D3d 1~07' [20121; Breve.,- v Villageol Cedarhurst, 94 AD3d g33''[2ot2J; F~\7nru~rnfm v Tqvvn of Babylon, B6 AD3d 599 f20i tJ/. "Rocogni.zed exceptions t() the prior wTltten notice requirement exist where the rnunicipa!ity created the detect or hazard through an affln-native act: of negligence, or where a ~;peciaf use confers a special benefit u?on if' ~lWNler v VWage of E NtHnpion, 98.AD3d at 1008·, see Amabile v Gity of Buftwb, 9:3 NY2o ~lt 474; BmvtH' v Vih\1g0 of Ceciarhurst, 94 A03d 933 [2012}), ··---Contrary ~o. plaintl~'s a,rguments, the affidavit of Ms, Cianmrra 1,:vas sufficientiy s.pecrric; to estat)nsh that the V!!!age had no prior written notice of the defoct that caused p!~intitfs fall. "The affid~vit of an Dftlcia! charged wrth the responsibility of keeping an n-:ine~?'.d record of all notiqes of defective conditlons received by [a tovvnJ is suft1dent to estflNish that ntl prior vvntten notice was filed'' { Sc~1fiffi v hwm ot ls.J'ip, 34 A D,3d 668, 824 [* 3] N.Y-82d 410 [2rni Dept 2006J citing Cruz v CityofNmN York, 2'H3 AD2d 546, 647 ['1~~ Dept '19951}, Moreover, plaintiffs argument that defendant did not establish that it did not create the dangerous condition which caust7d plaintiff's faH is ~vitnout rnerit. Notabiy, fv1s. Cfamarra's affidavit indicatas that the Village had not done any vvork in the area of p~aintiffs foH prk~r to the accident Further, although plaintiff re!les on Carlucci v. \hh'c.)ge of Scarsd~·Me {104 Atl:Jct 797, 961 N.Y.S2d 318 [2M Dept 20'13]), to argue that al!e~F~tions that the \!Wage created the condition which caused plaintiffs fall am sufficient to raise an issue of fact this Coutt does not agree such is the factual hoMing of that case. !n Cariuc::t.:r the AppeHate Division, Second Department reversed the motion court's fJtant of surnmary judgment to defendant \/Wage of Scarsdale on the ground that there vw:;re issues of fact regarding 'Nhether the \/Wage ot Scarsdale aftkmath«e~y created the condftion vvhich caused plaintiff's faH. A review of the record on appeai, discloses that plaintiff foH on a bhJestone/c.obblGstone sidHwalk in the Village of Scarsdale. tn C<.Jrh.toci, there \.'Vas no dispute that '15 years prior to p!aintlff s acddent tr)e vrnage of Sc.£.~rsdale had se~ected btuestone/i:::«::ibblestone mat~:;fial to be used in the re-sidewa!~~ing of the vmage. At the time the selection was made, the vmagH was aw<:1re that b!lJestone \Nas net an idea! material for sidevva!ks in an%~s located in the N<:Jiiheast because the colder season resutted in stones m~ding to be fn~quently· replaced or reset. Further, in Caducei, the Vii!age acknowledged that the se~ection of b!uestone as a materiaj f'or a sidewalk was going to be a "rnajor" rna!ntenance fssue. Here, plaintiff provides no factual support for his conc:!usury allegations that the \/Wage created the dan~1erous condition upon vvhich pt~intiff fe!L P~aintiff makes no specific factual allegations regarding any design or constructkm defect }n the side-.,vaik whem he foil to raise a question of fact Notably the cases cited in Caducei, Miller 1.1 Village of E h't.trr~oton, 88 AD3d 1007 ·n -·t G:aA·r1,.,-n-~·~·r·~m:r1 ~k li2.·.1~00· ep,t··v1~2··.1o·aB·.,,,,, .:~\. > l ~ln1. , faV8( ,,.1r1'·· ~· llf !{19<;, 0 f'C"··)d···+ ...-1.:.. d«HNS., "..,, . ...-00 .,,,;.,, .:~ .• ep.t2n1?1). ·"''''~·Ji: 0a>.,.H held th~t $Umm~ry judgrnent in favor of the rnuniclpaHty shot~ld be denied vvhere the plaintiffs therein raised issues of fact regarding whether the rnunlclpallty had created a dangerous condition by a!!egrng specified acts of negHgence in the design and construction of the sidewalk, the lighting, and/or the landscaping in the area. Plaintiff hem f"£.~i!s to allege any specified acts indicating that U1l~ vrnage negligently designed and/or constructed the sidl~wa!~; ln question. The remaining parties are directed to appear in the Preliminary Conference Part on January 12t 2015 at 9:30 a.m. room 800 for further proceedings, [* 4] Dated: VVhite New York n~~cember 4, 20'14 P~alns, :.•'

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