Degen v Del Bello

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Degen v Del Bello 2020 NY Slip Op 35098(U) February 4, 2020 Supreme Court, Westchester County Docket Number: Index No. 57391/2018 Judge: Charles D. Wood 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: WESTCHESTER COUNTY CLERK 02/04/2020 04:16 PM NYSCEF DOC. NO. 27 INDEX NO. 57391/2018 RECEIVED NYSCEF: 02/04/2020 commence the statutory statutory time time period period for appeals appeals To commence of right right (CPLR 55 13[a]), you are are advised advised to serve serve a copy copy as of (CPLR 5513[a]), of this order, order, with notice notice of of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF OF THE ST ATE OF NEW YORK YORK SUPREME THE STATE OF NEW COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY -----------------------------------------------------------------------X -----------------------------------------------------------------------)( LISA DEGEN, DEGEN, LISA DECISION & ORDER ORDER DECISION Plaintiff, Plaintiff, Index No.: 57391/2018 Index 57391/2018 Sequence No. 1 Sequence -against-againstJOHN N. DEL DEL BELLO, BELLO, JR. JR. and and HOLLY HOLLY DEL DEL BELLO, BELLO, JOHN Defendants. Defendants. ------------------------------------------------------------------------)( ------------------------------------------------------------------------X WOOD,J. WOOD,J. New York State State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers Numbers 8-26, 8-26, were New York were connection with with Defendants' Defendants' motion motion for summary read in connection summary judgment. judgment. Pedestrian seeks recover damages damages for injuries injuries she allegedly allegedly sustained when on August August Pedestrian seeks to recover sustained when 9,2017, ap~roximately 8:30AM, 8:30AM, she allegedly allegedly slipped slipped and 9, 2017, at apj:!roximately and fell on the sidewalk sidewalk in front front of204 of 204 Purchase Street Street in Rye. Purchase Based on the foregoing, foregoing, the motion motion is decided follows: Based decided as follows: settled that that "a "a proponent proponent of of a summary summary judgment motion must make a prima prima It is well settled judgment motion must make showing of of entitlement entitlement to judgment matter of law, tendering tendering sufficient sufficient evidence facie showing judgment as a matter of law, evidence to demonstrate the absence absence of of any material material issues issues of of fact" (Alvarez (Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d NY2d demonstrate 320,324 [1986]; see Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d 320, 324 [1986]; AD3d 684, 686686687 [2d Dept Dept 2007]; 2007]; see also Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). 2007]). Once movant also Rea Once the the movant threshold burden, burden, the opposing opposing party party must must present present the existence of triable triable issues issues of of has met this threshold existence of Zuckerman v New New York, York, 49 NY2d [1980]; see also Khan v Nelson, fact (see Zuckerman NY2d 557, 562 [1980]; also Khan Nelson, 68 AD3d AD3d 1 [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 02/04/2020 04:16 PM NYSCEF DOC. NO. 27 INDEX NO. 57391/2018 RECEIVED NYSCEF: 02/04/2020 Dept 2009]). 2009]). Conclusory, Conclusory, unsubstantiated unsubstantiated assertions assertions will will not suffice suffice to defeat defeat a motion motion 1062 [2d Dept summary judgment (Barclays Bank Bank ofNew of New York, N.A. Sokol, 128 AD2d AD2d 492 492 [2d Dept Dept for summary judgment (Barclays N.A. v Sokol, deciding a motion motion for summary summary judgment, required to view view the evidence evidence 1987]). In deciding judgment, the court court is required presented light most most favorable favorable to the party opposing opposing the motion motion and to draw draw every every presented "in the light reasonable inference inference from the pleadings proof submitted submitted by the parties favor of of the reasonable pleadings and the proof parties in favor opponent to t!-1· t!1'~ motion" (Yelder (Yelder v Walters, Walters, 64 AD3d AD3d 762, 762, 767 [2d Dept Dept 2009] 2009];; see Nicklas opponent ~ motion" Nicklas v Tedlen Realty Realty Corp. Corp.,, 305 AD2d AD2d 385, 385, 386 [2d Dept Dept 2003]). 2003]). The court must accept accept as true the Tedlen court must evidence presented presented by the nonmoving nonmoving party party and must must deny deny the motion motion if if there there is "even "even arguably arguably evidence doubt as to the existence existence of of a triable triable issue" issue" (Kolivas Kirchoff, 14 AD3d AD3d 493 [2d Dept Dept (Kolivas v Kirchoff, any doubt 2005]); Baker Baker v Briarcliff Briarcliff School School Dist., Dist., 205 AD2d AD2d 652,661-662 652,661-662 [2d Dept Dept 1994]). 1994]). Summary Summary 2005]); judgment drastic remedy remedy and should should not be granted granted where where there there is any doubt doubt as to existence existence judgment is a drastic of a triable triable is$ue issue (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d 320,324 [[1986]). of NY2d 320,324 1986]). time of of the accident, accident, defendant John N. Del Bello, Bello, Jr. ("defendant") ("defendant") was the owner At the time defendant John owner of the subject subject premises, that has four apartments, apartments, which which was purchased and continues continues to be of premises, that purchased as and rental property. Through his affidavit, affidavit, he attests attests that at no time time prior accident was he rental property. Through prior to the accident directed by the City City of of Rye to repair repair the sidewalk sidewalk in front of of the property. property. directed Generally, "liability "liability for injuries injuries sustained sustained as a result result of of negligent negligent maintenance maintenance of of or the Generally, existence of of dangerous dangerous or defective defective conditions conditions to public public sidewalks sidewalks is placed placed on the municipality municipality existence abutting landowner. landowner. (Morelli (Morelli v Starbucks Corp., 107 AD3d AD3d 963 963,, 964 [2d Dept Dept and not the abutting Starbucks Corp., 2013]). "However, "However, liability liability can can be imposed imposed on an abutting landowner where where the sidewalk sidewalk was 2013]). abutting landowner constructed in a special benefit of of the abutting landowner, where where the abutting abutting constructed special manner manner for the benefit abutting landowner, landowner affirmatively affirmatively caused caused the defect, defect, where where the abutting abutting landowner landowner negligently negligently constructed constructed landowner repaired the sidewalk, sidewalk, or where where a local ordinance ordinance or statute statute specifically charges an abutting abutting specifically charges or repaired 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 02/04/2020 04:16 PM NYSCEF DOC. NO. 27 INDEX NO. 57391/2018 RECEIVED NYSCEF: 02/04/2020 landowner with with a duty to maintain maintain and repair repair the sidewalk sidewalk and liability for injuries landowner and imposes imposes liability injuries flowing from a breach breach of of that that duty" duty" (Sammarco (Sammarco v City of of New York, 16 AD3d AD3d 657, New York, 657, 658 [2d flowing Dept 2005]). 2005]). Dept Here, the City of of Rye Ordinance Ordinance provides provides that: Here, of the Department Department of of Public Public Works Works to require require the owner owner of ""A. A. It shall shall be the duty of of property abutting abutting upon upon a street street to repair repair or replace replace any sidewalk sidewalk in front front thereof thereof that that is required property required repaired or replaced. replaced. Where Where the owner owner of of such property shall shall fail to neglect neglect to repair repair or such property to be repaired replace such sidewalk for five days after notice to do so has been been served served upon upon the owner, replace such sidewalk after notice owner, either either personally or by mailing mailing the same same to the name name of of the last known known owner owner thereof thereof as the the same same personally appears on the assessment assessment roll of of the City of calendar year, of Rye for the last calendar year, the Department Department of of appears Public Works Works shall shall repair repair or replace replace such sidewalk, and a statement statement for 100% of of the cost Public such sidewalk, cost incurred thereby thereby shall shall be served upon the owner, either personally personally or by mailing mailing the same to the incurred served upon owner, either the same of the last known known owner owner thereof thereof as the same same appears appears on said said assessment owner assessment roll. If If the owner name of of the property property shall shall fail to pay the same within 15 IS days after after demand, City Assessor Assessor shall, of same within demand, the City shall, in preparatic. of next assessment assessment roll, assess such amount amount upon upon such property, and the same of the next assess such such property, same the preparatic!.'. shall be levied, levied, collected collected and enforced enforced in the same same manner manner as taxes taxes upon upon said said property property for City purposes are levied, levied, collected collected and enforced. purposes enforced. event that that personal personal injury injury or property property damage damage shall result from from the failure failure of of any B. In the event shall result owner or other other responsible responsible person person to comply comply with with the provisions provisions of of this this section 167-477 section and §~ 167-4 owner above, the owner owner and such such other other person person shall liable to all persons persons injured, whose property property above, shall be liable injured, or whose damaged directly directly or indirectly indirectly thereby, thereby, and shall be liable liable to the City City to the extent extent that said is damaged that said required by law or by any court court to respond respond in damages damages to any injured party" party" (City (City any injured City is required Ordinance, NYSCEF Doc No. 17). Ordinance, NYSCEF Doc support of of their their motion, motion, defendants demonstrated, prima prima facie, that there there was In support defendants demonstrated, facie, that was no ,, I, ordinance or statute statute placing placing an obligation obligation on them them to maintain maintain the sidewalk abutting the subject ordinance sidewalk abutting subject property at the time time of of the subject subject accident; accident; and they offered offered evidence that none property evidence that none of of the elements elements which are necessary necessary to impose impose liability liability upon upon an abutting abutting landowner landowner were were present, present, including including which through defendant' defendant's s testimony testimony that that he never never made made repairs repairs to the sidewalk, and the Rye'ss through sidewalk, and the City City of of Rye' Department of of Public Public Works Works never never notified notified them them to make make such repairs. Department such repairs. opposition, plaintiff plaintiff failed to raise a triable triable issue issue of of fact, fact, including including plaintiff's plaintiffs In opposition, [* 3] 3 of 4sidewalk. Additionally, speculation that that the sidewalk sidewalk may not be a public public photograph which speculation sidewalk. Additionally, the photograph which FILED: WESTCHESTER COUNTY CLERK 02/04/2020 04:16 PM NYSCEF DOC. NO. 27 INDEX NO. 57391/2018 RECEIVED NYSCEF: 02/04/2020 plaintiff submitted submitted in opposition opposition to the motion, motion, failed failed to show show that that there of plaintiff there was any special special use of ~hat contributed to the alleged (Jackson v Thomas, 666-68 [2d the sidewalk sidewalk ~ hat contributed alleged defect defect (Jackson Thomas, 35 AD3d AD3d 666, 666, 666-68 Dept 2006]). 2006]). Dept Finally, the parties' depositions were were conducted, conducted, and plaintiffs plaintiffs "mere "mere hope hope that that evidence Finally, parties' depositions evidence sufficient to defeat defeat the motion motion may may be uncovered uncovered during during the discovery process" is insufficient insufficient to sufficient discovery process" defeat summary summary judgment (Jackson v Thomas, Thomas, 35 AD3d AD3d 666, 666, 667). 667). defeat judgment (Jackson court has considered considered the remainder remainder of of the factual factual and legal legal contentions The court contentions of of the parties, parties, and to the exf--nt ex{~nt not specifically specifically addressed addressed herein, herein, finds them them to be either without merit merit or either without rendered moot moot by other other aspects of this Decision Decision and Order. This constitutes constitutes the Decision Decision and rendered aspects of Order. This Order of of the Court. Court. Order Accordingly, for the stated stated reasons reasons it is hereby: Accordingly, ORDERED, that that defendants' defendants' motion motion for summary ORDERED, summary judgment judgment is granted, granted, and the Complaint is dismissed. dismissed. Complaint Clerk shall shall mark mark his records records accordingly. accordingly. The Clerk Dated: To: February 4, 2020 2020 February White Plains, Plains, New York White New York Parties by NYSCEF All Parties NYSCEF 4 [* 4] 4 of 4

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