Dejesus v Melendez

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Dejesus v Melendez 2019 NY Slip Op 34230(U) May 13, 2019 Supreme Court, Nassau County Docket Number: 600130/19 Judge: Randy Sue Marber 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] NASSAU COUNTY CLERK 05/15/2019 11:37 AM NYSCEF DOC. NO. 42 INDEX NO. 600130/2019 0 RECEIVED NYSCEF: 05/15/2019 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARBER JUSTICE TRIAL/IAS PART 8 X ------------------ SAMUEL DEJESUS, Index No.: 600130/19 Motion Sequence ... 01 Motion Date ... 03/15/19 Plaintiff, -againstGEORGE MELENDEZ, MILAGROS GUADALUPE, ADAMINA GUADALUPE, THE TOWN OF HEMPSTEAD and THE COUNTY OF NASSAU, Defendants. X ------------------ Papers Submitted: Notice of Motion ........................................ x Upon the foregoing papers, the unopposed motion by the Defendant, COUNTY OF NASSAU (hereinafter "COUNTY"), seeking an Order, pursuant to CPLR §§ 3211 (a)(l) and (a)(7), or in the altematiYe, pursuant to CPL}{§ 321 l(c), for conversion of the instant application to summary judgment, granting it summary judgment and dismissing the Plaintiffs Complaint and all cross-claims asserted against it, is decided as hereinafter provided. In the instant action, the Plaintiff, SAMUEL DEJESUS (hereinafter "DEJESUS"), seeks to recover damages from the petendants, for p~rsonal injuries allegedly sustained on November I, 2017 when he tripped an_d f~ll on a sidewalk adjacent to 76 Oakley Avenue, Elmont, New York, situated in the Tov.~n of Hempstead 1 1 of 5 [*FILED: 2] NASSAU COUNTY CLERK 05/15/2019 11:37 AM NYSCEF DOC. NO. 42 INDEX NO. 600130/2019 RECEIVED NYSCEF: 05/15/2019 (See Notice of Claim, annexed to Motion as Exhibit "A"). The Plaintiff alleges that the Defendants were negligent in their ownership, maintenance and control of said sidewalk in causing it to become and remain raised, broken, uneven and cracked creating a dangerous and hazardous condition (Id.). The Plaintiff further alleges that the COUNTY had actual and/or written notice of the subject defect prior to the date of the alleged incident (Id.). The Defendant, COUNTY, now moves for summary judgment on the grounds that: I) the location of the alleged incident is not within the jurisdiction of the - ' COUNTY; and 2) the COUNTY did not receive writt~n notice regarding the alleged defect prior to the Plaintiffs alleged incident. The COUNTY submits the Nassau County roadway jurisdictional map to establish the location_of the alleged incident was not on a COUNTY owned roadway (See Map, annexed tp Motion as Exhibit "E"; see also, Land Record Lookup, annexed to Motion as Exhibit "D"). To this end, the COUNTY relies upon the Town of Hempstead Code, Part VII, Chapter. 181, which . : ' ' provides that, "an obligation is imposed on the abutting landowner to repai1~ sidewalks .. ,. at the landowner's expense." In support of its motion, the COUNTY submits the Affidavit of Veronica Cox, employed by the COUNTY in the Bureau of Claims and Investigations in the Office of the Nassau County Attorney (See Veronica Cox's Affidavit at ,i 1, annexed Jo Motion as Exhibit "F"). Based on a search personally conducted of the Nassau County Notice of Claim Files and Notice of Defect Files, Ms. Cox attests that the COUNTY 2 2 of 5 [*FILED: 3] NASSAU COUNTY CLERK 05/15/2019 11:37 AM NYSCEF DOC. NO. 42 INDEX NO. 600130/2019 RECEIVED NYSCEF: 05/15/2019 received no prior written notice involving the subject location of the incident within the past six (6) years, including the date of the Plaintiffs alleged trip-and-fall. No opposition has been submitted by any party to the COUNTY's motion. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefor~, entitled to summary judgment as a matter of law (See Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986]). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter, but to determine whether or not there exists a genuine issue for trial (See Miller v. Journal-News, 211 A.D.2d 626 [2d Dept. 1995]). When seeking summary judgment, the moving party's burden is to demonstrate a prima facie entitlement to judgment as a matter of law by tend~ring sufficient evidence to establish the absence of a material issue of fact (See Ayotte v. Gervasio, 81 N.Y.2d 1062 [1993]). If this initial burden has not been met, the motion must be denied without regard to the sufficiency of the opposing papers (Se_e Alvarez v. Prospect Hospital, 68 N.Y.2d 320, supra; Miceli v. Purex, 84 A.D.2d 562 [2d Dept. 1981]). A landowner has a duty to maintain his/her property in a reasonably safe condition to prevent foreseeable injuries (See Basso v. Miller, 40 N.Y.2d 233, 241 [1976]). Whether a dangerous condition exists on a property so as to create liability on the part of a landowner depends on the particular circumstances of each case and is generally a question of fact for the jury (See, Quintero v. Wilner, 74 A.D.3d 1042, 1043 3 3 of 5 [*FILED: 4] NASSAU COUNTY CLERK 05/15/2019 11:37 AM NYSCEF DOC. NO. 42 INDEX NO. 600130/2019 RECEIVED NYSCEF: 05/15/2019 [2d Dept. 2010]; Shalamayeva v. Park 83 rd Street Corp., 32 A.D.3d 387, 388 [2d Dept. 2006]). . . It is well settled that a municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies (See, Wolin v. Town of N. Hempstead, 129 A.D.3d 833, 834 [2d Dept. 2015], quoting Monaco v. Hodosky, 127 A.D.3d 705, 706 [2d Dept. 2015] (citations omitted); Amabile v. City of Buffalo, 93 N.Y.2d 471, 474 [1999]). "Prior written notice statutes are strictly construed and only two exceptions are recognized, 'namely, where the locality created the defect or hazard through an affirmative act of negligence and where a special use confers a special benefit upon the locality"' (Chirco v. City ofLong Beach, 106 A.D.3d 941, 942 [2d Dept. 2013], quoting Amabile v City of Buffalo, 93 N.Y.2d at 474 [citation and internal quotation marks omitted]; see also, Wolin, 129 A.D.3d at 834, supra). A claim for negligence requires the pleading of facts that impose a duty of care upon the defendant in favor of the plaintiff, a breach of that duty, and that the breach of such duty was a proximate cause of the plaintiffs injuries (See, Pu!ka v. Edelman, 40 N.Y.2d 781 [1976]; Akins v. Glens Falls School Dist., 53 N'.Y.2d 325,313 [ 1981 ]). Absent a duty of care, there is no breach. and without breach there can be no liability (See, Pulka v. Edelman, supra; Gordon v. Muchnick, 180 A.D.2d 715 [2d Dept. 1992]). Preliminarily, however, whether a duty of care is imposed upon the defendant 4 4 of 5 [*FILED: 5] NASSAU COUNTY CLERK 05/15/2019 11:37 AM INDEX NO. 600130/2019 . . NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 05/15/2019 in favor of the plaintiff under the circumstances alleged is an issue of law for the court to decide (See, Church v. Callanan Indus., 99 N.Y.2d 104 [2002]). Here, the COUNTY jurisdictional map establishes that the COUNTY does not own, control or maintain the subject sidewalk. Moreover, no evidence has been proffered by any party to demonstrate that the COUNTY received written notice of the defect prior to the alleged incident. Further, the COUNTY established, via the affidavit of Ms. Cox that it did not have prior written notice of the alleged defective condition. Accordingly, it is hereby ORDERED, that the motion by the Defendant, COUNTY OF NASSAU, seeking an Order, pursuant to CPLR §§ 3211 (a)(l) and (a)(7), dismissing the Plaintiffs Complaint and all cross-claims asserted against it, is GRANTED; and it is further ORDERED, that the remaining parties are reminded to appear for the previously scheduled Compliance Conference on August 29., 2019 at 9:30 a.m. This constitutes the decision and Order of this Court. DATED: Mineola, New York May 13, 2019 11:Jll~ Hon. Ranily Sue Marber, J.S.C. ENTERED MAY 15 2019 NASSAU COUNTY COUNTY CLERK'S OFFICE 5 5 of 5

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