Benitez v Village of Lake Grove
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Benitez v Village of Lake Grove 2017 NY Slip Op 32795(U) December 19, 2017 Supreme Court, Suffolk County Docket Number: 06319/2016 Judge: William G. Ford 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. [* 1] SHORT FORM ORDER INDEXNO.: 06319/2016 SUPREME COURT - STATE OF NEW YORK I.A.S. PART 38 - SUFFOLK COUNTY PRESENT: HON. WILLIAM G. FORD JUSTICE of the SUPREME COURT MARIA BENITEZ & CELSO LEDEZMA, Plaintiff, -againstVILLAGE OF LAKE GROVE, Defendant. Motion Submit Date: 06/29/1 7 Motion Seq#: 001 MG; CASE DISP PLAINTIFF'S COUNSEL: Law Offices of John H. Mulvihill, Esq. 220 Cambon A venue St. James, NY 11780 DEFENDANT'S COUNSEL: Siler & Ingber, LLP By: Jeffrey P. Miller, Esq. 301 Mineola Boulevard Mineola, NY 11501 Upon the following papers read on defendant's motion for summary judgment pursuant to CPLR 3212; Notice of Motion; Affinnation in Support· and supporting papers dated June 5. 2017; PlaintilT's Affianation in Opposition and supporting papers dated June 21 , 2017; Defendant's Reply Affirmation in Further Support dated June 26, 2017; (aud trftc1 hearing eottuscl in 1111pport and opposed to !lie motion) it is, ORDERED that defendant Village of Lake Grove's motion for summary judgment pursuant to CPLR 3212 dismissing plaintiff's complaint for negligence due to premises liability against them having been duly and fully considered is granted for the reasons appearing below. Plaintiff Maria Benitez and her husband Celso Ledezma ("plaintiff" or "Benitez") brought this premises liability negligence action against defendant the Village of Lake Grove ("defendant" or "the Village") seeking monetary damages for injuries Benitez alleges she sustained. More specifically, Benitez alleges that she sustained a right shoulder rotator cuff which required surgical intervention and repair because of a fall incident on property kept or maintained by the Village. On a sunny and dry Tuesday, November 24, 2015, between 9:00 and 9:30 a.m., Benitez, a Lake Grove resident, had decided to walk to a local neighborhood park located on Pond Path Road. In so doing, Benitez walked down her street, Stony Brook Road, which intersected Pond Path and State Street, where the park was located. Plaintiff used the sidewalk located on Stony Brook Road as her path of travel. As she walked down the street, she observed that a portion of the sidewalk was covered by leaves. To avoid walking through the leaves, Benitez stepped to her right with her right foot and inadvertently landed in a hole located between the sidewalk curb line and the blacktop road. [* 2] Maria Benitez & Celso Ledez11w v. Village of Lake Grove Im/ex#: 06319116 Pagel Benik/ testified both al her municipal examination pursuan1 to General Municipal Law§ 50-h on April 5. 2016. and her examination before trial held on March 1. 2017. that the hole was deeper than 6 inches. was circular or round and at least I foot wide or 15 jnchcs hy 15 inches. Plaintiff explained that despite being aware of the h<)le, having seen it at least once before a month prior, she was unable to discern its presence on the date of the incident as it was obscured by the prcsente of leaves covering it. Because she stepped into the hole. Benitez fcll 10 her right side. with her right hand and right shoulder impacting the ground. Plaintiffs fall was unwitnessed. She called 911 immediately after the incident, but Suffolk County Police did not make contact until much later. sorrn.:lime in March 2016. when they prepared an incident report at her home. Benitez walked home. reported the incident to her husband and reported to Stony 13rook Hospital's Emergency Room with complaints of pain. An X-Ray examination was conducted finding no evidence of fracture. Plaintiff was then referred to follow up with an orthopedist. Benitez was then examined by doctors at Stony Brook Orthopedist Associates where she was diagnosed after ultrasound and MRI with a right shoulder rotator cuff tear. She underwent surgery on March 29. 2016 and underwent physical therapy therea fter. As pled in her co1nplaint and amplified in her verified bill of. plaintiff has sought recovery of special damages as \Veil as lost earnings and pain and suffering arising from the incident. Benitez began litigating her claim against the Village. first complying with the statutory condition precedent required by General Municipal Law ~ 50-i by serving her notice of claim on February 16, 2016. Plaintiff then commenced this action serving her summons and complaint against the Village on June 28. 2016. Defendant joined issue serving its answer to the complaint on July 19. 2016. Plaintiff amplified the pleadings serving her Verified Bill of Particulars on August 15. 2016. Discovery in this matter began with the parties entering into a Preliminary Conference Order on October 4. 2016. Discovery concluded with the panics certifying this matter ready for tria l on July 5. 2017. Plaintiff filed a Note of Issue demanding trial by jury on April 6. 20 17. During discovery. the Village produced the Supcrintcnd1.mt of its Department of Public Works. David I.ea for a deposition held on March 1. 2017. He testified that as superintendent, his regular and routine job duties included supervision of the maintenance of the Village ·s highways and roads. Lea also tcstilicd that he was familiar with the area comprising the site of plaintiffs incident. having driven by it on a weekly basis. He however was not generally aware the last time work was done by the Village on the sidewalk in question. nor did 11c know whether the Village kept or maintained records such as plans. drawings or schematics for the area in question. However. Lea did confirm that the Village did maintain curbing, sidewalks and roadways such as the incident site. or Before the Court is defondant's motion for summary judgment. In support of their application. the Village has submitted copies of the pleadings, the transcripts o f plaintiffs 50-h [* 3] Mari11 Benitez & Celm Letlez11111 /11dex #: 06319116 Page 3 1•. Village of Lake Groi e 1 hearing. deposition, Lea 's deposition transcript. and affidavits from the Village's deputy clerk. mayor. and planning board chair. It is wel l settled that summary judgment is a drastic remedy which should nol he granted when there is doubt as to the existence or a triahll.! issue of fact. Where. however. one seeking summary judgment lenders cvidentiary proof in admissible form establishing its defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, the burden falls upon the opposing party to show, also by evidcntiary proof in admissible form, that there is a material issue of fact requiring a trial of the matter (.we Zuckerman v. City of New York, 49 NY2d 557, 562 ll9801). The evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion (see Goltlsteill v. Monroe County, 77 AD2d 232, 236 [1980)). The proponent on a motion of summary judgment must make a prinw .fl.1cie showing of entitlement lo judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320 11986]: Willegrcul v New York U11iv. Meil. Ctr., 64 NY2d 851 [l 9851;1~ Zuckerman v City of New York. 49 NY2d 557 rt 980J). Ir the moving party fai Is in meeting this burden, the motion must he denied. 1f. however. this burden is satisfied. then the burden shit1s to the opposing party to establish the existence of material issues of fact requiring a trial (see Z11ckerma11. supra). The function of the court in determining a motion for summary judgment is issue finding, not issue detennination (Ptmtote Big Alpha Foods, Inc. v Sc/1efma11, 121 AD2d 295 I l st Dept. 1986]). The burden then shifts to the party opposing the motion which must produce evidcntiary pr0of in admissible form sufficient to require a trial of the material issues of fact (Roth v B11rreto, 289AD2d 557 Pd Dept. 20011: Rebecclti v Whitmore. 172 AD2d 600 (2d Dept. 19911: O'Neill ii Fishkill, 134 /\D2d 487 l2d Dept. 1987]). The law is well-established that summary judgment is a drastic remedy to be granted only when there is clearly no genuine issue of fact to be presented at trial (see Audre v Pomeroy, 35 NY2d 361 [ 1974]: Be11i11casa v Garrubo, 141 AD2cl 636 [2d Dept. 1988J). An affirmation by counsel lacking direct firsthand and personal knowledge of the relevant and material facts underlying the controversy arc insufficient to raise a triable issue or fact to defeat summary judgment (see e.g. Prince v Accardo, 54 AD3d 837, 838 [2d Dept 20081; Sa11abria v Pm/11cl1. 6 l AD3d 839. 840. 876 NYS2d 874 [2d Dept 2009j). Having reviewed the motion record and the arguments submitted for and against the motion by the parties. a few things merit attention mention. [* 4] Marill Be11itez & Celso Ledezma''· Village of lllke Grove Index#: 06319116 Page 4 First. it is undisputed that plaintiff did not give the Village any prior\\ rittcn notice or the c:xistcnce of the alleged dangerous condition at issue here: the hole she foll in. This fact is corroborated by defendant's proffer of the affidavit testimony by Deputy Village Clerk Linda Howell. that despite a diligent search or lhc Villages record book for receipt of prior written notice. no such notice was received by the Village concerning, the hole where plaintiff fell on the date of the incident. November 24. 20 I 5. further. llowcll te ·ti lied in somewhat condusory fashion that no special use was put to or any worked was conducted by the Village of that area on Pond Path Road near Stat<: Street and Stony Arook Road in Lake Grove. Secondly. by plaintifrs own sworn admiss ion at her examinations under oath. plaintiff staled that the hole she fell into was located on the sidewalk of Pond Path Road. Ilcnitez was not aware of how or who created the hole or hov; long the hole existed other than observing it I month prior to her fall. Given these two points, the Village seeks dismissul or thi s action arguing that plaintiff cannot prove a prinw .fi.1c:i<! case of premises liability against it a municipality without proof of prior written notice pursuant to Village Law § 6-628. Moreover. assuming arguendo. defendant maintains that no exception to the prior \VTillcn notice rule exists here where plaintiff admits that she is unaware of the nature and circumstances of the hole· s creation. duration, and further where the Village has submitted in admissible form sworn denials of special use or municipal \.H>rk near or in proximity to the alleged dangerous condition. fl is well settled New York law that pursuant to Village Law § 6 -618. a municipality cam1ot be liable as a matter or law "'unless ' rillcn notice of the defective. unsafe, dangerous or obstructed condition or of the existence of the snow or ice, relating to the particular place. was actually given to the village clerk ... (San Marco v Vil.!Tow11 of Jl,:fount Kisco, 16 NY3d 111. 115 120101; Morzello v Vil. ofBri<trcliffMmwr, 260 AD2d 6 11, 612 [2d Dept 1999j). The policy considcraciun adopted by the Com1 of Appeals behind this rule "compo11~ with the reality that municipal officials arc not aware of every dangerous condi tion on its strl!cts and puhlic -.,valkways. yet imposes responsibility for repair once the municipality has been served with \nittcn notice of an obstruction or other defect. or liability for the con~equenccs of ics nonleasancc ··(Amabile'' City of Buffalo. 93 NY2d 471. 474 [ 19991). Within the Secon<.l Department. the only recogni7.cd exceptions to the municipal prior written notice requirement exist where the municipalit; created the defect or hazard through an affim1ativc act of negligence. or where a special use confers a special benefit upon it .. (Palka v Vil. of Ossi11i11g. 120 AD3d 641. 641-42 l2d Dept 2014)). By her counsel"s affirmation in opposi ti on to dc!Cndant's motion. plaintiff argues against the grant of summary judgment charactcri:Ling the area that she fell in as the "'ribbon'". a dirt unpaved area between the blacktop roadway and the side\valk lcnninating with the curb line. Relying on the ordinary meaning. plain and express text or the Village Law, plaintiff thus argues [* 5] Maria Be11itez & Celw Ledezma v. Village of Lake Grove llldex #: ()6319116 Page 5 that the Village is entitled to prior \<Hillen notice for the allegation of dangerous conditions pertaining lo streets. highways. or sidewalks. as relevant here. Therefore. plaintiff argues thal defon<lanrs motion shou ld be denied in its entirety as it is premised upon a lack of rc4uisitc statutory notice. Plaintiff' s effort must b<.: unsuccessful as it is contrary to establi shed Second Department law in at least two respects. t\s noted above, an attorney" s allirmation alone is insunicient to raise a triable question of fact. Plaimifrs C<)unscrs statutory construction arguments. being legal in nature. cannot raise relevant and material triable questions of fact requiring resolution hy the foctfindcr lo dclcat sununary judgment. More importantly. this Courrs review of the motion record indicates that counsel's arguments arc hclicd by plaintiffs O\.vn sworn testimony. Benitez testified at deposition that the dangerous condition. the hole she fell into wa-; beside the concrete sidewalk. but not on the hlacktop roadway or Pond Path Road. Pia inti ff further stated under 0alh that the hole itself was on the sidewalk of Pond Path Road. J\s argued by the Village in reply and further support of its motion. the Second Department has previously determined that .. the strip of" grass between the sidewalk and roa<lv.ray is part of the sidewalk ... (ft fnlo11e v Town of Sout/i(}fd. 303 J\D2d 65 l. 652 f2d Dept 2003J: Ziz:;.o •' City of New York. 176 AD2d 7'22 I2d Dept 1991 ][grassy area adjacent to the curb line '-''·here the plaintiff tell is part of the sidewalk j). This interpretation finds support in statute since the Vehicle & Trame Law explicitly defines ··sidewalk"" a~ that ··portion of u street between the curh lines. or the lateral lines of a roadway. and the adjacent property lines, intended for the use ofpe<lestrians ... N.Y. Yeh. & Traf. L. § 144 rMcKinncy's 2017J. Thus. this Court <lclcm1incs that plaintifT s opposition lo dclcndant"s motion is unavailing. This being the case. the Court next turns to exami ne whether <letendant has adduced surticient proof in admissible form to entitle it to judgment as matter of law on the question of lack or notice to warrant an award of summary judgment dismissing plaintiff's complaint. To establish prinwfacie cnlitkmcnt to j udgment as a matter of law. the Village i~ obligated to show not only that it did not receive prior written notice of the dangerous condition. but that it did not create that condition through an affirmative act of negligence (Moncrieffe v City of Wltite Plai11s , 115 ADJd 9 15, 916- 17 f2d Dept 2014J ~ KeatiJ1g v Tow11 of Oyster B11y, 111AD3d604. 605 l2d Dept 20131: Walker v foe. Vil. t?f Freeport, 52 ADJd 697, 697 [2d Dept 2008 ll mw1icipality established entitlement to judgment as a matter of law with submission of proof thai a search of the its records revealed no prior written notice or dangerous condition prior to the subject al"cidentj). Herc. the Village has submitted sworn testimony by both deposition and atlida\"it of Village officials demonstrating that plaintiff did not provide notice of the underlying dangerous condition us required by statute. and further. that the Village did not cause or contribute to the existence of the condition by special use or work within the vicimty of the area. Given this demonstration. this Court determines that ckfcndant the Village of Lake Grove has suhmiucd sunicient proof primafi.1de entitl ing it to judgment as a matter of law dismissing plaintiffs Maria Benitez and Celso Lcdczm.a·s complaint for lack of statutory required notice. [* 6] 1 Waria Benitez & Celso Ledezma ''· Village of Lake Grm1 e Index#: 06319116 Page 6 Plaintiff has not submitted sunicicnt proof in admissible form to contradict dclcndanl's proor or lack of notice. or alternatively. evidence that the Village caused or contributed to the existence of the dangerous cond ition by special use or municipal work in. near or at the incident site. Thcrcfi.)rc. it is accordingly ORDERED that defendant Village or Lake Grove's motion pursuant to CPLR 3212 for summary judgment dismissing plaintiffs Maria Benitez and Celso Lcdczma·s complaint as a matter of la\\< is hereby granted ~ and it is farther ORDERED that the plaintiffs Maria Benitez and Celso l ,cdczma complaint is hereby dismissed; and it is further ORDERED movant is hereby directed to serve a copy entry on the plaintiffs forthwith. The forego ing constitutes the decision and order or this decision with notice of or this Court. Dated: December 19. 1017 Riverhead. Ncvv York WILLIAM G. FO RD, .J.S.C. _L. FINAi. DISPOSITION NO~-Fl'IAL OISPOSITION
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