Weinstein v Town of Hempstead

[*1] Weinstein v Town of Hempstead 2016 NY Slip Op 50086(U) Decided on January 14, 2016 Supreme Court, Nassau County Brown, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 14, 2016
Supreme Court, Nassau County

Carol Weinstein and GIL WEINSTEIN, Plaintiff(s),

against

The Town of Hempstead and TOP-IT 1111, LLC, Defendant(s).



9640/12



Attorney for Plaintiff

Friedman Friedman Chiaravalotti & Giannini, Esqs.

2 Rector Street, 21st Floor

New York, NY 10006

Attorney for Defendant TOH

Joseph Ra, Esq.

Town Attorney

Hempstead Town Hall

1 Washington Street

Hempstead, NY11550

Attorneys for Defendant Top-It

Paganini Cioci Pinter Cusumano & Farole, Esqs.

3 Huntington Quadrangle, Ste. 201-S

Melville, NY11747

Attorneys for Defendant Robustello

D'Amato & Lynch, LLP

Two World Financial Center

225 Liberty Plaza

New York, NY10281
Jeffrey S. Brown, J.

The following papers were read on this motion:Papers Numbered

MS 2MS 3

Notice of Motion, Affidavits (Affirmations), Exhibits Annexed.........................14

Answering Affidavit .............................................................................................25

Reply Affidavit......................................................................................................36

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Defendant Top-It 1111, LLC (Top-It) moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint and any cross-claims asserted by the co-defendant against it. Defendant Town of Hempstead (Town) cross-moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint.

In this personal injury plaintiff alleged to have tripped and fallen as a result of a crack on a sidewalk in Hewlett, New York. This action was commenced on July 30, 2012. Issue was joined by both Top-It on October 24, 2012 and the Town on October 24, 2012. In support of Top-It's motion are the deposition transcripts of the plaintiff Carol Weinstein, defendant Town, defendant Top-It, and an affidavit from Jeanmaire Waters, a principal of Top-It.

Plaintiff Carol Weinstein testified in her deposition that on May 11, 2011, she parked her car in a small parking lot across the street from the Aqua Beauty Salon. She stepped out of her car into the parking lot. She walked about twelve steps until she came to the sidewalk. She took one step onto the sidewalk and caught her shoe in a crack causing her to fall. She testified that she fell on the "apron" of the driveway where cars came into and left the lot.

Andrew Brust, a Town highway inspector testified on behalf of the Town. Prior to his position as highway inpector, he was employed by the Town as a sidewalk inspector. He would inspect sidewalks in response to notices of claim, written letters of complaint or a tree removal by the department of engineering. He reviewed paperwork which indicated to him that a search was done and there was no prior notice for a period of five years. He did not know who did the search, nor was there any indication whether there was a sidewalk inspection at the location. Andrew Brust has no recollection of visiting the location in question. He reviewed a photograph shown to him, and it appeared that a portion of the parking lot is a Town parking lot. Further, if the sidewalk is abutting the Town parking lot, the Town would have the responsibility for the maintenance of the sidewalk.

Jeanmaire Waters is the managing member of Top-It. Top-It is the owner of a building consisting of commercial stores. Behind these stores is a parking lot for tenant parking. Top-It's parking lot was behind the Town Parking lot. In order to get into the Top-It parking lot, a vehicle had to pass through the Town lot. In order to get into the Town lot a vehicle had to cross the curb cut from Franklin Avenue displayed in the photograph.

Jeanmaire Waters also submitted an affidavit wherein she stated that she is a principal of Top-It which owned a building at 1206-1212 Broadway in Hewlett. There was a small parking lot behind the building which was accessed through a parking lot owned by the Town. She states that Top-It did not make special use of the sidewalk where the accident occurred. Nor did Top-It, or any of its agents, damage, repair, maintain, clear snow or sweep the sidewalk in question. Further, its agents did not create the defect where plaintiff was alleged to have fallen.

In support of the Town's motion, the affidavit of Sheila Dauscher, a Record Access Officer of the Town highway department was submitted. She is familiar with the roadways under the jurisdiction of the Town and records maintained by the highway department. It appears that plaintiff fell on the curb cut portion of the sidewalk on Franklin Street, north of the north-east corner of the intersection with Franklin Street and Broadway in the parking lot identified as H-11 in Hewlett, New York.

A personal search of records of written complaints and notices of roadway conditions of the highway department was conducted. She also reviewed the notices of claims or written notices regarding roadway accidents or conditions received by the Office of the Town Clerk. Such search revealed no written complaints or noticesof claim regarding the subject location for a period of three years prior to May 11, 2011. Nor did the records reveal any repair records indicating that the Town Highway Department performed any repairs at the subject location or contract with any municipality or contractor to maintain, repair or perform construction work to the subject location for a period of three years prior to May 11, 2011.

In opposition to Top-It's motion, counsel for plaintiff argues that Top-It's tenants and principal made use of the driveway in question where the alleged defect was and as a result, such use is a "special use." Further, in opposition to the Town's motion, counsel argues that the [*2]private interests of the abutting landowner creates a special benefit for said landowner and as a result, an exception is created allowing plaintiff to maintain her action against both defendants.

Also submitted by plaintiff is an affidavit from Stanley Fein, P.E. a licensed professional engineer. He reviewed the photograph that was marked for identification. It is his opinion that the "fragmented, fractured and cracked" area was caused by improper and negligent construction and the regular flow of vehicular traffic in and out of the Town and private parking area.

In reply, counsel for Top-It argues that Top-It did not own nor was it the tenant abutting the area where plaintiff was alleged to have fallen. Nor did Stanley Fein visit the location in question and argues that the court should ignore this affidavit. Counsel for the Town contends that there is no written notice as required nor does this sidewalk apron convey a special use upon the municipality.

It is well settled that a the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Sillman v Twentieth Century Fox, 3 NY2d 395 [1957]; Alvarez v Prospect Hospital, 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Bhatti v Roche, 140 AD2d 660 [2d Dept 1998]). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the Court, as a matter of law, to direct judgment in the movant's favor (Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 NY2d 1065 [1979]). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation (CPLR § 3212 [b]; Olan v Farrell Lines, 64 NY2d 1092 [1985]).

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Zuckerman v City of New York, 49 NY2d 557 [1980], supra). It is incumbent upon the non-moving party to lay bare all of the facts which bear on the issues raised in the motion (Mgrditchian v Donato, 141 AD2d 513 [2d Dept 1998]). Conclusory allegations are insufficient to defeat the application and the opposing party must provide more than a mere reiteration of those facts contained in the pleadings (Toth v Carver Street Associates, 191 AD2d 631 [2d Dept 1993]). When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist (Sillman v Twentieth Century Fox, 3 NY2d 395 [1957], supra).

Recine v. Margolis, 24 Misc 3d 1244A; 901 N.Y.S.2d 902.

Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained [sidewalk] unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies (Leiserowitz v City of New York, 81 AD3d 788 [2nd Dept. 2011]; De La Reguera v City of New York, 74 AD3d 1127 [2nd Dept. 2010]; Schleif v City of New York, 60 [*3]AD3d 926 [2nd Dept. 2009]; Smith v Town of Brookhaven, 45 AD3d 567 [2nd Dept. 2007]; see, Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Poirer v City of Schenectady, 85 NY2d 310, 314-315 [1995]).

There are, however, two exceptions to this rule: (1) "where the locality created the defect or hazard through an affirmative act of negligence" which "immediately results" in the existence of a dangerous condition;" and (2) "where a special use' confers a special benefit upon the locality" (see, Amabile, 93 NY2d at 474; see, San Marco v Village/Town of Mount Kisco, 16 NY3d 111 [2010]; Yarborough v City of New York, 10 NY3d 726 [2008]; Oboler v City of New York, 8 NY3d 888, 890 [2007]; Delgado v County of Suffolk, 40 AD3d 575, 576; see also, Pluchino v Village of Walden, 63 AD3d 897; Diaz v City of New York, 56 AD3d 599 [2nd Dept. 2008]).

Furthermore, "[l]iability may be imposed on the abutting landowner [in a sidewalk defect case] where the landowner either (a) created the defective condition, (b) voluntarily but negligently made repairs, (c) created the defect through special use, or (d) violated a statute or ordinance which expressly imposes liability on the abutting landowner for failure to repair." (Ellman v. Vill. of Rhinebeck, 41 AD3d 635 [2d Dept 2007]; see also Fishelberg v Emmons Ave. Hospitality Corp., 26 AD3d 460 [2d Dept 2006]; Nichilo v B.F.N. Realty Assoc., Inc., 19 AD3d666 [2d Dept 2005]).

The Town has established its prima facie entitlement to judgment as a matter of law by submitting the affidavit of Sheila Dauscher which demonstrated that the Town did not have any prior written notice of the alleged defect (Koehler v Inc. Village of Lindenhurst, 42 AD3d 438 [2nd Dept. 2007]; see, Selburn v City of Poughkeepsie, 28 AD3d 468, 469 [2nd Dept. 2006]). Consequently, it is incumbent upon plaintiff to submit competent evidence that the municipality affirmatively created the alleged defect (Koehler v Inc. Village of Lindenhurst, supra; Adams v City of Poughkeepsie, 296 AD2d 468, 469 [2nd Dept. 2002]) or where a special use' confers a special benefit upon the locality" (see, Amabile at p. 474)

" [A]butting landowners are liable for a defect in a public sidewalk only when the owners either created the defective condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation on them to maintain the sidewalk and expressly makes them liable for injuries caused by breach of that duty.'" (Nunez v. City of New York, 41 AD3d 677, 678 [2d Dept 2007])(internal citations omitted)).

Imposition of the duty to repair or maintain a use located on adjacent property is necessarily premised, however, upon the existence of the abutting land occupier's access to and ability to exercise control over the special use structure or installation. The doctrine of implied duty [to repair a special use structure] requires the person who, even with due permission, constructs a scuttle hole in the sidewalk in front of his premises, to use reasonable care for the safety of the public, as long as it remains there and is subject to his control.' Thus, although the [*4]duty to repair runs with the land as long as the appurtenance is maintained for the benefit of the land, it is the express or implied access to, and control of, the special use which gives rise to the duty. That access and ability to exercise control over the special use are essential to the existence of a duty to repair and maintain is further illustrated by circumstances in which separate entities, each possessing control over the instrumentality, have been held liable on a special benefit theory." (Kaufman v. Silver, 90 NY2d 204, 207-08 [1997](internal citations omitted).

" [L]iability for a dangerous or defective condition on property is generally predicated upon ownership, occupancy, control or special use of the property . . . Where none is present, a party cannot be held liable for injuries caused by the dangerous or defective condition of the property.' The principle of special use, a narrow exception to the general rule, imposes an obligation on the abutting landowner, where he puts part of a public way to a special use for his own benefit and the part used is subject to his control, to maintain the part so used in a reasonably safe condition to avoid injury to others.' Special use cases generally involve the installation of an object in the street or on the sidewalk, such as an oil cap or a runway, for the benefit of a private landowner. The common thread in each of these cases was an installation exclusively for the accommodation of the owner of the premises which he was bound to repair in consideration of private advantage.' The special use is a use different from the normal intended use of the public way, and thus, [t]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.' [Defendant], whose business does not abut the parking space, offered evidence that it did not own, maintain, or make a special use of the parking spaces on the public street. The plaintiffs failed to come forward with any opposing evidence demonstrating that [defendant] created or caused the defective condition, or made a special use of the public parking spaces. The use by [defendant]'s customer of public parking spaces on a public road is not a "special benefit" giving rise to a special use." (Minott v City of New York, 230 AD2d 719, 720 [2d Dept 2006](internal citations omitted)).

Similarly, in this case, the Town did not derive an special exclusive benefit from the subject property unrelated to the general public use of a parking lot utilized by the public. (see, Fazio v Town of Mamaroneck, 226 AD2d 338 [2d Dept 1996] (holding that "because the signal box in this case was maintained by the Village in the discharge of its duty to create safe streets and did not confer a special benefit upon the Village, it cannot be considered a special use for the benefit of the Village"); cf, Petty v Dumont, 77 AD3d 466 [1st Dept 2010](holding that over the years, Con Ed did derive a "special benefit" from the barriers by converting the previously-public parking lane into a private entry lane for the Con Ed facility, under Con Ed's control and exclusive use)). Thus, because the plaintiff has not demonstrated that a special use conferred a special benefit upon the municipality, defendant Town is entitled to a judgment as a matter of law dismissing the complaint as against the Town.

As to defendant Top-It, plaintiffs have not tendered evidentiary proof demonstrating the [*5]existence of material questions of fact. Nothing in plaintiffs' opposition indicates that defendant Top-It exercised control over the use of the subject driveway "apron" or were ever afforded access to that portion of the Town property to make any necessary repairs. Nor has it been shown that the apron was created, constructed of installed by defendants Top-It for their exclusive benefit, or at their behest, or at the direction of their predecessors in interest. (See, Kaufman, 90 NY2d 204). Therefore, summary judgment dismissal of the complaint as to defendant Top-It is also warranted.

Accordingly, it is hereby

ORDERED, that defendant Top-It's motion for summary judgment is GRANTED; and it is further

ORDERED, that defendant Town's motion for summary judgment is GRANTED.

This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied.

Dated:Mineola, New York

January 14, 2016ENTER:

_________________________________

HON. JEFFREY S. BROWN

J.S.C.