Coventry v Town of Huntington
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Coventry v Town of Huntington 2016 NY Slip Op 30181(U) February 1, 2016 Supreme Court, Suffolk County Docket Number: 08-38633 Judge: Ralph T. Gazzillo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] 51 IOlff fOR '~ INDEX No. CAL No. Kl>ER .. 08-38633 14-0 19340'1' SUPREME COURT - STATE or NEW YORK I.A.S. PART 6 - SUFFOLK COUNTY PRESENT : Hon. RALPH T. GAZZILLO Acting Justice of the Supreme Court MOTION DATE 2-19-1 S (#006) MOTION DATE 3-26-1S (#007) ADJ. DATE 7-30-15 Mot. Seq. # 006 - MG; CASEDISP # 007 - MG --------------------------------------------------------~------)( ALEXANDER N. COVENTRY, an infant under the Age of 14 years, by his mother and natural guardian KELLY M. COVENTRY and KELLY M. COVENTRY, Individually, ANDREA & TOWSK Y Attorney for Plaintiffs 320 Old Country Road. Suite 202 Garden City, New York 11530 Plaintiffs, - against TOWN OF HUNTINGTON and COUNTY OP surFOLK, BARTi ,ETf, MCDONOUGH, & MONAGI JAN Attorney for Defcndant!fhird-Party Plaintiff Town of I luntington l 70 Old Country Road, 4th Floor Mineola, New York 1150 1 Defendants. ---------------------------------------------------------------X TOWN OF I IUNTINGTON, Third-Party Plaintiff, - against - NICOLETTI HORNIG CAMPISE Attorney for Third-Party Defendant f luntington Reach Community Association, Inc. 88 Pine Street, 7th floor New York, New York 10005 1IUNTINGTON BEACH COMMUNITY ASSOCIATION INC., Third-Party Defendant. ---------------------------------------------------------------)( Upon the following papers numbered I to _jJ_ read on these motions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1- 14 15-31 ; Notice of Cross Motion and SLtpporting papers _ ; Answering Affidavits and supporting papers 32-37, 38-46 ; Replying Affidavits and supporting papers 47-48 49-5 1 ; Other _ ; (and after hearing counsel in support and opposed to the motion); it is OR.DERED that these motions are consolidated for the purposes of this determination; and it is further [* 2] ORDERED that the motion by third-party defendant Huntington Beach Community Association, Inc. (''I IBCA") for an order pursuant to CPLR 3212 granting summary judgment dismissing all claims by the defendant/third-party pla intiff Town of Huntington ("Town") is granted ; and it is further ORDERED that the motion by defendant/third-party plaintiff Town of Huntington for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint as asserted against it is granted. This is an action to recover for personal injuries suffered by the infant Alexander N. Coventry on June 12, 2008 when he was wa lking in knee deep water in Centerport Harbor. Said infant plaintiff allegedly sustained injury when his foot came into contact with a defective, broken, rusty, jagged and/or dangerous drainage pipe as he was walking in the water. Plaintiffs allege that the delcndant Town owned operated, maintained, controlled and serviced the defective pipe that caused the injuries. The Town then brought a third-party action against the HBCA asserting four causes of action, the first two sounding in ncgligence, the third alleging violation by HBCA of unspecified rules statutes and ordinances, and the fourth alleging the existence of an agreement between the Town and the HBCA, by which the Hl3CA agreed to maintain the location where the accident occurred and to indemnify defendant Town in the event or a recovery by the plaintiffs. Defendant HBCA now moves for summary judgment dismissing the third-party complaint. ln support of the motion it submits, inter all. , its attorney's affirmation, a copy of the pleadings, portions of a the deposition transcripts of the plaintiffs, of Richard Conrad and Bianca Dresch as witnesses for defendant Town, and of Jeffrey R. Robinson as a witness for defendant HBC/\. In opposition, defendant Town submits it attorney's affirmation, the deposition transcripts of the plaintiffs, and the deposition transcript of Jeffrey R. Robinson. Defendant Town also moves for summary judgment. In support, it submits, inter alia, its attorney's affirmation, a copy of the pleadings, the deposition transcripts oft he plaintiff, and of Richard Conrad, Bianca Dresch, and Jeffrey R. Robinson, the affidavit of Michael Kaplan, sworn to on February 24, 2015, and the affidavit of Diana Esposito, sworn to on February 25, 20 15. Plaintiffs, in opposition to the Town's motion, submit their attorney's affirmation, four photographs, the affidavit of Frank Meak, sworn to on July 2, 2015, and the affidavit of Kelly M. Coventry, sworn to on July 9, 2015. The infant plaintiff testified that he sustained a cut to his left foot as a result of coming into contact with a rusty metal drainage pipe outside of the swimming area [marked out by the HBC/\]. He had never seen the pipe bcfore his accident. I le was injured while retrieving a tennis ball from the water outside or the roped off swimming area. The water in the location where he was injured was thigh high. Plaintiff Kelly M. Coventry, the infant plaintiffs mother, testified that the accident in question occurred on June 12, 2008, at approximately 4 :30 p.m. Infant plaintiff came home from school and met her at the beach. She was sitting on a beach chair on the beach in front of the area of the water which was cordoned off by buoys and ropes for swimming. She asked infant plaintiff to go into the water to retrieve a tennis ball which she had thrown into the water, and which the family dog had failed to retrieve. She observed the infant plaintiff enter t he water approximately 15 feet to the right of the cordoned off swimming area. It was not low tide at the time of the accident; the water was somewhere between his knees and hips. She saw her son stumble and then observed blood in the water as he walked out of the watcr to the beach. She had never seen the drainage pipe before. She had to wait until low tide to actually see the pipe. She had no reason to believe that there was any dangerous condition in the water when she asked infant plaintiff to retrieve the ball. Even at low tide, the pipe was frequently not visible because it is covered with sand. [* 3] Coventry v Huntington lndex No. 08-38633 Page No. 3 Richard Conrad testified as a witness for defendant Town. l Iis current title is labor crew leader in the Highway Department. rTc testified that the Town owned the drainage pipe in question and the beach where the pipe was located. The pipe provides drainage for the public street (Adams Street) abutting the HBCA property. He was unaware of any agreement between the Town and the J IBCJ\ regarding the usage or the beach. I le also testified as to the repair of the pipe after the infant plaintiff's accident. He testi lied that the repair had to be done at low tide because at high tide, water covered the area where the repairs had to be done. Jeffrey R. Robinson testified as a witness for defendant I IBCA. He is a former president and current board member of the l IBCA. lie testified as to the property which was owned by the HBC/\. and produced a survey which showed the boundaries of the property . .He further testified that it docs not own the portion of the beach below the mean high water mark where the accident occurred. Jle also testified that the HBC/\ had built structures (a basketball court, a playground, a wooden guardrail) on adjacent property that is owned by the Town. He testified that the by-laws of the HBCA indicate that non-members were not permitted on the premises. However, he also testified that non-members could, in fact, walk on the beach and use the beach and did so all the time. The proponent of a summary judgment motion must make a prima facie showing of entitlement to j udgment as a matter of Jaw, tendering sufficient evidence to eliminate any material issues of fact from the case (Alvarez v Prospect Hospital, 68 Y2d 320, 508 NYS2d 923 f 1986J; Sillman v Twentieth Ce11turyFox Film Corp. , 3 NY2d 395, 165 NYS2d 498 [ 19571). Failure to make such a showing requires denial or the motion, regardless of the sufficiency of the opposing papers (Winegrad v N. Y.U. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 l1985'1). Once such proof has been offered, the burden then shitls to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form ... and must "show facts sufficient to require a trial of any issue of fact" (CPLR 321 2 lb j ; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [ 1980]). Third-party defendant HBCA has established its prima facie entitlement to summary judgment dismissing the third-party complaint. It is noted that the Town failed to set forth proof of any violation of laws, rules or regulations by the llBCA or of the existence of any agreement between the Town and HBCA. as alleged in the third and fourth causes of action set forth in the third-party complaint. Jt is axiomatic that before a defendant may be held liable for negligence it must be shown that the defendm1t owes a duty to the plaintiff (see Engelhart v County of Orange, 16 AD3d 369, 790 NYS2d 704 12d Dept 2005 J; Pulka v Edelman, 40 NY2d 781, 390 NYS2d 393 [ 1976]). As a general rule, liabi lity for a dangerous condition on property must be predicated upon ownership, occupancy, control or special use of the property (see Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 (2d Dept 20051; Dugue v 1818 Newkirk Mgt. Corp. , 301 AD2d 561, 756 NYS2d 51 (2d Dept 2003]; see also Ruggiero v City School Dist. of New Rochelle, l 09 AD3d 894, 972 NYS2d 606 f2d Dept 2013]; Butler v Rafferty, I 00 NY2d 265, 762 NYS2d 567 l2d Dept 20031). Without evidence of ownership, occupancy, control , or special use of the property upon which the defect is situated, a defendant cannot be held liable for any injuries caused by the defect (see Ruggiero v City School Dist. ofNew Rochelle, supra; Mitchell v Icolari, 108 AD3d 600, 601 . 969 NYS2d 503 f2d Dept 3013]; Cerrato v R"pista11 Demag Corp. , 84 AD3d 714, 7 16, 921 NYS2d 648 l2d Dept 20111). Here HBCA has provided evidence that it did not own, maintain, control or have any spec ial use of the drainage pipe which caused the infant plaintiff's injuries. In response defendant/third- [* 4] Coventry v Huntington Index No. 08-38633 Page No. 4 party plaintiff Town has fai led to raise any question of fact. The argument set forth by the Town that the I rBCA is subject to liability because it makes a "special use" of the Town's property (installing a basketball court and a playground) misstates and misapprehends the concept of special use. The special use doctrine refers to a use different from the nonnal intended use of the public way, and thus, ''lt]he special use exception is reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from that property unrelated to the public use'' (Poirier v City ofSchenectady, 85 NY2d 310, 315, 624 NYS2d 555 (1995]; see Met/ta/ v City of New York, 116 AD3d 743, 984 NYS2d (2d Dept 2005]; Minott v City ofNew York, 230 AD2d 719, 720, 645 NYS2d 879 12d Dept 19961; Kaufman vSilver, 90NY2d 204, 207, 659NYS2d 250, 681 l l 997l). Liability arises only if the abutting owner or lessee created the defect or used the [public way] for a special purpose (Granville v Ci(y of New York, 211 AD2d 195, 197, 627 NYS2d 4), such as when an appurtenance was installed for its benelit or at its request (see Kaufman v Silver, supra; Oles v City ofAlbany, 267 AD2d 571, 572, 699 NYS2d 202 [3d Dept 1999J), contemplating a purpose di ffcrent from that of the genera] public (Otero v City of New York, 2 13 AD2d 339, 340, 624 NYS2d 157). Also at issue is whether that special use was a substantial cause of the defect that allegedly caused the plaintiffs injury (see Weiskopf v City of New York, 5 AD3d 202, 203, 773 NYS2d 389 f2d Dept 20041). The drainage pipe which allegedly caused the plaintifrs injuries was not installed for defendant llBCA's benefit or for a purpose different from that or the general public. The drainage pipe was installed to provide drainage for the public roadway, Adams Street, which abuts not only the HBC/\ property and the Town property, but also which abuts numerous other residential properties in the area. Thus, HBCA has no special use of the drainage pipe and is entitled to summary judgment dismissing the third-party complaint. The Town has established its entitlement to summary judgement by submitting evidence that it had no prior written notice of the alleged dangerous condition, the damaged drainage pipe, which falls within the definition of "culvert" under the Huntington Town Code. Huntington Town Code § 174-3 (A) provides: No civil action shall be maintained against ... the Town of Huntington, its elected officials. public officers, agents, servants and/or employees ... for damages or injuries to person or property sustained by reason of any highway, bridge, culvert, street, sidewalk or crosswalk owned, operated or maintained by the town or owned, operated or maintained by any improvement or special district therein being defective, out of repair, unsafe, dangerous or obstructed unless written notice of the specific location and nature of such defective, unsafe. out of repair, dangerous or obstructed cond ition by a person with first-hand knowledge was actually given to the Town Clerk or the Town Superintendent of Highways in accordance with § 174-5 hereof and there was thereafter a failure or neglect within a reasonable time to repair or remove the defoct, danger or obstruction complained of. In no event shall . . . the Town of Huntington, its elected ofilcials, public officers, agents, servants and/or employees ... be liable for damage or injury to persons or property in the absence of such prior written notice. Constructive notice shall not be applicable or valid. "A municipality that has adopted a prior written notice law cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies" [* 5] Coventry v Huntington Index No. 08-38633 Page No. 5 (Barnes v Incorporated Vil. of Port Jefferson , 120 AD3d 528, 529, 990 NYS2d 841 l2d Dept 2014]; Carlucci v Village ofScarsdale, 104 AD3d 797, 961NYS2d3 I 8 [2d Dept 2013]; Wilkie v Town of H1111fi11gton, 29 AD3d 898, 816 NYS2d 148 [2d Dept 2006], citing Amabile v City of Buffalo, 93 NY2d 471, 693 NYS2d 77 11999]; Lopez v G&J Ru<lolpll, 20AD3d511, 799 NYS2d 254 [2d Dept 20051). ·'The only two recognized exceptions to a prior written notice requirement arc the municipality's affirmative creation or a defect or where the defect is created by the municipality's special use of the property" (Gonzalez v Tow11 of Hempstead, 124 AD3d 719, 2 NYS3d 527 l2d Dept 20151; Forbes v City of New York, 85 /\D3d 1106, 1107, 926 NYS2d 309 l 2d Dept 2011 ]). Any prior verbal complaints or other internal documents generated hy the Town arc insufficient to satisfy the statutory requirement (see Wilkie,, Town of H11nti11gton, 29 AD3d 898, 816 NYS2d 148 [2d Dept 2006 1 Cenname v Town of Smitlttown, 303 ; AD2d 351, 755 NYS2d 65 l [2d Dept 2003]). Similarly, neither constructive notice nor actual notice of a defect obviates the need for prior written notice to the Town (see Amabile v City of Buffalo, supra: Wilkie v Tow11 of llu11ti11gto11, supra; Cenname Town ofSmithtown, supra). "Actual notice of the alleged hazardous condition does not override the statutory requirement of prior written notice of a [alleged] defect" (Ve/ho v Village ofSleepy Hollow, 119 AD3d 551 , 552, 987 NYS2d 879 f2d Dept 20141; see also Gonzalez v Town of Hempstead,124 AD3d 719, 2 NYS3d 527 [2d Dept 2015]; Chirco v City of Long Beach , 106 J\03d 941 , 943, 966 NYS2d 450 [2d Dept 2013]). The affidavits of Diana Esposito and Michael Kaplan establish that there was no prior written notice of the alleged defect filed with either the town clerk's office o r with the highway department, as required by the Town ordinance. The affidavit of an official charged with the responsibility of keeping an indexed record of all notices of defective conditions rccei ved by a town is sufficient to establish that no prior written notice was filed ( Velllo v Village ofSleepy Hollow, supra; Petrillo v Town of Hempstead, 85 AD3d 996, 998, 925 NYS2d 660 f2d Dept 201 l]; Pagano v Town ofSmithtown, 74 AD3d 1304, 904 NYS2d 729 f2d Dept 2010J; LiFrieri v Town of Smithtown, 72 J\D3d 750, 752, 898 NYS2d 629 [2d Dept 2010J). Plaintiffs have failed to establish that either of the exceptions to the prior written notice requirement. The affirmative negligence exception "is limited to work by the City that immediately results in the existence of a dangerous condition" (see Yarborough v City ofNew York, 10 NY3d 726, 853 NYS2d 26 1 r2008l; Oho/er v City of New York, 8 NY3d 888, 889, 832 NYS2d 871 [2007]). Herein, plaintiffs have !"ailed to proffer evidence in admissible form that the Town's alleged negligence caused or immediately resulted in the existence of a dangerous condition (see Yarborough v City of New York, supra; Denio v City ofNew Roelle/le, 71 AD3d 717, 895 NYS2d 727 l2d Dept 20101; McCarthy v City of Wltite Plains, 54 AD3d 828, 863 NYS2d 500 [2d Dept 2008]). Thus, plaintiffs having failed to raise an issue of fact by submitting evidence in admissible form to show that the defendant either affirmatively created the condition causing plaintiffs accident or of a special use of the property, defendant Town is entitled to summary judgment (see Gonzalez v Town of Hempstead, supra; Forbes v City of New York. supra). In light of the foregoing, the motion by defendant/third-party defendant Huntington Beach Community Association, Inc. ('"HBCA") for an order pursuant to CPLR 3212 granting summary judgment dismissing all claims by the third-party plaintiff Town of Huntington is granted. The motion by defendant/third-party plaintiff Town of Huntington for an order pursuant to CPLR " ""' ,,,,..,T j ud15n><mt d.lomi(j(ji115 th1,; l.i\Jlllp{uiat i::> 11i::>U g,rantcci. , 1'"1 I '"I o,.n,~t; ·~o / Dated ~/_f!_ __
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