Senese v Village of Bronxville

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Senese v Village of Bronxville 2015 NY Slip Op 32981(U) September 3, 2015 Supreme Court, Westchester County Docket Number: 69168/12 Judge: David S. Zuckerman 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 09/04/2015 03:45 PM NYSCEF DOC. NO. 32 INDEX NO. 52387/2015 RECEIVED NYSCEF: 09/04/2015 Dispo Dispo Seq# Seq # 11 commence the 30 day day statutory statutory time time To commence period for appeals appeals as of right right period 5513[a]), you (CPLR 5513[a]), you are advised advised to serve aa copy copy of this order, with with notice notice serve of entry, upon upon all parties parties SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY ----------------. ------------------- -- - - ---- -x ----------------~----------------------------X CONCETTA SENESE, CONCETTA DECISION/ORDER DECISION/ORDER Plaintiff, Plaintiff, -against -against VILLAGE OF BRONXVILLE, BRONXVILLE, BRONXVILLE BRONXVILLE REALTY REALTY THE VILLAGE ASSOCIATES, and "XYZ CORP", aa fictitious ASSOCIATES, fictitious entity that owned located at entity owned the premises premises located 40 Pondfield Pondfield Road, Bronxville, Bronxville, New York, 40 April 14, 14, 2014, on April Defendants. Defendants. Index No. Index No. 69168/12 69168/12 Motion Date: Motion 06/26/15 06/26/15 ---------------------------------------------X ---------------------------------------------x ZUCKERMAN, J. ZUCKERMAN, were considered considered in The following following papers papers numbered numbered 11 to 3 were connection with with this motion motion by Defendant Defendant Village Bronxville for connection Village of Bronxville ORDER granting granting summary summary judgment Plaintiff and dismissing dismissing an ORDER judgment against against Plaintiff complaint: the complaint: PAPERS PAPERS NOTICE MOTION/MOTION/EXHIBITS NOTICE OF MOTION/MOTION/EXHIBITS AFFIRMATION OPPOSITION/EXHIBITS AFFIRMATION IN OPPOSITION/EXHIBITS REPLY NUMBERED NUMBERED 11 2 3 ury action, Plaintiff Plaintiff Concetta Concetta Senese Senese In this personal personal inj injury ("Plaintiff") alleges April 17, alleges that, on April 17, 2014, she tripped tripped and fell walking on aa sidewalk located at 40 Pondfield Pondfield Road as she was walking sidewalk area located Road ("the premises"), premises"), Village of Bronxville, Bronxville, New ("the in Defendant Defendant Village New York York adjacent Defendant Bronxville Bronxville ("Village") .. That location location is adj a cent to Defendant Realty Associates Associates ("Realty") ,s Defendant XYZ Corp Corp ("XYZ") ("XYZ") 11,' sS Realty ("Realty")' s and Defendant premises. Plaintiff alleges alleges that she tripped over an un-level un-level premises. Plaintiff tripped over portion of the pavement causing her portion pavement at the premises premises and fell, fell, causing 1 1 apparently not yet appeared appeared in the action. action. XYZ has apparently [* 2] hearing, and a GML §50-h waived its right to a ~50-h hearing, Village waived injuries. The Village the notice of th~ written notice prior written a lack of prior now moves dismiss for a moves to dismiss alleged defect. alleged judgment, it alleges Village's motion motion for summary summary judgment, alleges that In the Village's evidence that they had notice notice of, of, nor caused caused or there is no evidence Plaintiff where condition allegedly dangerous dangerous condition where Plaintiff fell. fell. created, the allegedly notice as written notice received no written they received Particularly, they assert that they they assert Particularly, Village argues, Defendant Village required ~6-628. Thus, Defendant Village Law §6-628. under Village required under notice of the allegedly having created nor received allegedly written notice received written neither created having neither Plaintiff's injuries. dangerous condition, it is not liable liable for Plaintiff's injuries. dangerous condition, provides Village ~6-628 provides Law §6-628 Village Law No civil action action shall be maintained maintained against against aa Village Village for property sustained person or property damages or injuries injuries to person sustained in damages or sidewalk consequence highway ...sidewalk highway ... street, any of consequence being defective, crosswalk or any other other public defective, out place being public place crosswalk unless dangerous obstructed ... ...unless or obstructed of repair, unsafe, dangerous or dangerous written notice defective, unsafe, dangerous defective, of notice written Village given to the Village obstructed condition condition .. ..was actually given was actually obstructed a within neglect wi Clerk, and there failure or neglect thin a a failure there was a notice to reasonable such notice receipt of such after the receipt time after reasonable time repair or remove remove the defect, danger, or obstruction obstruction repair place otherwise the place complained of or ... ...the otherwise made made reasonably reasonably complained safe. safe. bears movant bears motion, the movant Upon aa defendant's defendant's summary summary judgment judgment motion, and in competent the initial initial burden evidence, competent presenting evidence, burden of presenting material issues admissible form, form, establishing establishing the absence absence of any material issues of admissible Insurance fact. Country-Wide Insurance Medical Care v Country-Wide Etienne Medical viane Etienne Vi viane fact. New York Slip Op 04787 (June 10, 2015); Winegrad Winegrad v New York (June 10, Company, 2015 NY Slip that event (1985). University Medical Center, 64 In the event NY2d 851 (1985). 64 NY2d Medical Center, University initial burden burden is met, the non-moving non-moving party party must must come come fbrward forward with with initial proof, also in admissible admissible form, form, that there there are material material issues issues of Prospect v Prospect Alvarez trial of the action. action. Al varez require aa trial which require fact which Hospital, 68 NY2d (1986). NY2d 320 (1986). Hospital, 68 In Celardo Celardo v. (2d Dept 1995), the court court AD2d 547 (2d Bell, 222 AD2d v. Bell, stated: a drastic judgment is a It summary judgment drastic axiomatic that summary It is axiomatic that clear that remedy should only granted if it is clear only be granted which should remedy which Issue presented. Issue no material been presented. have been issues of fact have material issues finding, rather rather than than issue determination, determination, is the Film Century-Fox v Twentieth court's function function (Sillman (Sillman Twentieth Century-Fox Film court's Corp., 3 NY2d there is any doubt doubt ·about about If there 1957.) NY2d 395 ((1957.) Corp., the existence existence of aa triable triable issue of fact or if aa judgment material issue of fact is arguable, arguable, summary summary judgment material issue 2 [* 3] of v Village Brook v should Village of Stony Brook denied (Museums at Stony should be denied AD2d 572 (1989) Pachogue (1989) Pachogue Fire Dept., 146 AD2d notice written notice prior written proper prior A a proper enacted a which has enacted municipality which A municipality injuries from personal injuries statute may liability for personal subject to liability may not be subject statute written prior written received prior a unless it has received way unless public way a public defect in a a defect Amabile it. notice condition or has affirmatively affirmatively created created it. Amabile notice of the condition Schnectady, 85 v Schnectady, Poirier v v City of Buffalo, (1999); Poirier NY2d 471 (1999); 93 NY2d Buffalo, 93 v City nd (2 nd AD3d 833 (2 Hempstead, 129 AD3d North Hempstead, NY2d (1995); Wolin v Town of North NY2d 310 (1995); nd (2 nd Dept AD3d 759 (2 , 128 AD3d Dept 2015); Devita Brookhaven, , of Brookhaven, v Town of Devita v nd (2 nd 1135 AD3d 127 Hempstead, North 2015); Fryc-Canella v Town of North Hempstead, AD3d (2 of Frye-Canella v nd Dept AD3d 894 (2 Dept 2015); Agard City of White Plains, 127 AD3d (2nd v City Agard v municipality a municipality a statute, 2015) When statute, a upon such a relying upon When relying 2015).. matter of law a matter judgment as a establishes entitlement to judgment prima facie entitlement establishes prima written prior written lack of any prior by submitting admissible form of lack proof in admissible submitting proof Agard, notice. Wolin, supra; Fryc-Canella, supra; Agard, supra. Here, supra; Frye-Canella, Clerk Village the Defendant submitted evidence evidence from Village Clerk Village has submitted Defendant Village that there defect at the notice of any defect written notice prior written there was no prior Village at work by the Village repair work location fall, nor any repair Plaintiff's fall, location of Plaintiff's demonstrate Plaintiff to demonstrate that location. shifts to Plaintiff then shifts burden then location. The burden exceptions to that there notice or one of the two exceptions written notice prior written there was prior municipality the prior written notice requirement; namely, that the municipality requirement; notice written prior act of affirmative caused or created the defect through an affirmative through defect created caused 2 upon benefit a special negligence,2 special use confers special benefit upon the confers a a special negligence, or a municipality. Fryc-Canella, Frye-Canella, supra. municipality. them in In reviewing court examines examines them responding papers, the court reviewing the responding benefit of bestows the benefit the light most favorable to Plaintiff Plaintiff and bestows most favorable 724, AD2d 724, v. Vasquez, 249 AD2d Boyce v. every inference to her. Boyce reasonable inference every reasonable Plaintiff however, Plaintiff papers, however, 726 1998). In her opposing opposing papers, 98) . ( 3d Dept 19 7 2 6 (3d Village whether the Village triable issue of fact as to whether raise aa triable failed to raise received alleged defect, defect, created created the notice of the alleged written notice prior written received prior location nor the condition conducted at the location work conducted immediately by work condition immediately upon benefit upon a special conferred a existence special use which special benefit which conferred existence of any special assert that more does the Village. In her response, Plaintiff does no more that assert Plaintiff response, Village. before well before as sought that summary summary judgment sought well premature, judgment is premature, burden on meet its burden discovery, and that the Village failed to meet Village has failed discovery, burden on the met its burden the motion. Instead, upon having met Village having upon the Village Plaintiff who has issue of lack written notice, it is Plaintiff prior written lack of prior there that there form that admissible form failed to come evidence in admissible with evidence forward with come forward was prior caused or created created municipality caused written notice, that the municipality prior written negligence, or that its the defect defect through affirmative act of negligence, through some affirmative upon the benefit upon special a special use at the premises conferred a special benefit premises conferred special constitute creation creation of the defect, work done by the work done To constitute municipality existence of resulted in the existence immediately resulted have immediately must have municipality must the dangerous DeVita, DeVita, supra. condition. dangerous condition. 2To 2 3 --~~~~------- [* 4] Village. -· Frye-Canella, supra. Fryc-Canella, Upon the foregoing foregoing papers, it is judgment in favor of ORDERED, that the motion motion for summary summary judgment ORDERED, Defendant Village Village of Bronxville Bronxville and against against Plaintiff Plaintiff is granted granted Defendant and the Complaint Complaint is dismissed dismissed as to said Defendant. Defendant. foregoing constitutes constitutes the Opinion, Opinion, Decision Decision & & Order Order of the The foregoing Court. York White Plains, New York Dated: White 3, 2015 September September 3, A.J.S.C.. ,, A.J.S.C ESQ. DONNA M. WHITE, ESQ. ·.DONNA Morris Duffy Duffy Alonso Alonso & & Faley Faley Morris Attorneys for Defendant Defendant Attorneys Village of Bronxville Bronxville Village nd Floor Rector Street, 22 nd Two Rector New York, NY 10006 10006 ESQ. EUGENE RABINOVICH, ESQ. EUGENE RABINOVICH, Goidel & Siegel, LLP Goidel & Attorneys Plaintiff Attorneys for Plaintiff 3~ Floor 56 West 45th Street, 3~ New York, New York 10036 New York 44

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