Turcios v Cairo
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Turcios v Cairo 2020 NY Slip Op 35174(U) December 16, 2020 Supreme Court, Nassau County Docket Number: Index No. 609273/19 Judge: Denise L. Sher 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. INDEX INDEX NO. NO. 609273/2019 609273/2 19 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 RECEIVED NYSCEF: NYSCEF: 12/16/2020 12/16/2 20 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IAS PART 33 RAQUEL TURCIOS, NASSAU COUNTY Index No.: 609273/19 Motion Seq; Nos.:02, 03 Motion Dates: 09/10/2020 09/10/2026 Plaintiff, -againstROBERT FRANK CAIRO,LISA F. CAIRO, TOWN OF HEMPSTEAD and COUNTY OF NASSAU; XXX Defendants. The following papers have been: read on these motions: Papers Numbered Notice bf Motion (Seq. No. 02), Affii'mation and Exhibits and Memorandum of Law Affirmation in Opposition to Motion(Seq. No. 02)·and Exhibits ReplyAffirrriatioh to Motion(Seq. No. 02) Notice of Cross-Motion (Seq. No. 03), Affirmation and Exhibits Affirmation irt Opposition to Cross ..Mcition (Seq. 03}and Exhibits Reply Affirmation to Cross..;Motion (Seq. No. 03) 1 2 3 4 5 6 No. Upqn the foregoing papers, it is ordered that the motions are decided as follows: Defendants Robert Frank Cairo and Lisa F. Cairo (hereinafter collectively "defendants Cairo.") 1nove (Seq. No . 02), pursuant to CPLR § 3212, for an order granting sumrnaryjudgment dismiss1ng plaintiff's· Verified Complaint as against them, and any and all cross-claims as against them .. Plaihtiff opposes.the.moffon (Seq. No. 02). Defendan:tTown of Hempstead (''TOH'}cross-moves (Seq; No; 03); pursuant to CPLR . . § 3212; for an ol'dergrru.1ting sumin~ judgment dismissing plaintiffs Verified Complaint as [* 1] 11 of 20 20 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 INDEX INDEX NO. NO. 609273/2019 609273/2 19 RECEIVED NYSCEF: NYSCEF: 12/16/2020 12/16/2 20 against it, and any and all cross~claims as against iL Plaintiff opposes the cross-motion (Seq. No. 03). This is an action to recover damages for personal injuries allegedly sustained by plaintiff . . on February 11, 2019, at approximately I :00 p.m., when shewas,caused to slip and fall due to a raised/uneven sidewalk abutting the property owned by defendants Cairo, located at 3026 Roxbury Road, at the cornet of Campbell Avenue, Oceanside; County of Nassau, State of New York. See Defendants· Cairo's• Affinnation in Support of Motion (Seq. No. 02) Exhibit· C. The action was commenced with the filing and service of a Summons and Verified Complaint on or about July 8, 2019. See Defendants Cairo'sAffirmation inSupport of Motion (Seq. No. 02) ExhibitB. Issue wasjoined by defendants Cairo onor about August 5, 2019. See id. Issue was joined by defendant TOH on .or about August I, 2019. See id. In support of defendants Cairo's motion(Seq. No. 02), their counsel submits, in pertinent part, that, " [t]his lawsuit arises from a trip and fall accident that occurred on February 11, :2019 on the public sidewalk abutting the prope1ty owned by the Cairns, located at 3026 Roxbury Road (at the comer of Campbell Avenue), Oceanside, New Y otk (hereinafter, the· 'Premises ')due to the alleged presence of a raised/uneven sidewalk. The plaintiff is a neighbor of the Cairns, Jiving only a few houses down Roxbury Road, ... Plaintiffs complaint asserts a number ofcauses of action sounding in negligence as againstall of the defendants, and a cause ofactkm as against the Cairns alleging their 'failing to follow Town and County guidelines', though (sic) does not specify any specific 'guidelines' .... Phliiitiff asserts generally (in paragraph 7) the negligence. of 'the defendants' in failing to properly construct, maintain and, repair the sidewalk at issue,. in creating the.dangero~us condition anci in allowing it to rema:infor an inordinate period oftiroe. Plaihtiff further asserts that the defendants created the defecttve condition by 'failure to properly 2 [* 2] 22 of 20 20 ······················-·············---········-··········-·-·········-··----~-- FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM INDEX INDEX NO. NO. 609273/2019 609273/2h19 NYSCEF: 12/16/2020 12/16/2 _20 RECEIVED NYSCEF: NYSCEF DOC. DOC. NO. NO. 63 63 1 remove tree located adjacentto sidewalk'. Plaintiff asserts actual and constructive notice; though provides no details regarding same. With regard to the allegation in the complaint regarding . . 'failing to follow Town and County guidelines', plaintiffptovides no particulars and fails to even identify Wh&t 'guideHnes' to which she is referring, instead (atparagraphs 12 and lJ) asserting general violations by 'the defendants.' 'as may be judicially noted by thisCourt' ." See. Defendants Cairo's Affirmation inSupport of Motion (Seq. No, 02) Exhibits B and C. In further support of defe1tdahts Cairo's motion (Seq. No. 02), they submit the Affidavits of defendant Robert Frank Caito and Lisa F. Cairo. See Defendants Cairo·'s Affirmation in Support of Motion(Seq. No. 02) Exhibit D .. DefendantRobe1t Frank Cairo asserts,·in pertinent part, that, ''!currently reside with my wife and our children at 3026 Roxbury Road, Oceanside,. New York(hereinafterreferred to as the 'Premises').Mywife·and I were the owners ofsuch Premises on the date of the plaintiffs accident herein, February 11, 2019, having purchased it in 2003. The Premisesis, and has al ways been, a single-family residential dwelling. , .. My family always been the only. occupants of the Premises: The Premises is now, and has are now andhave . always been since we have owned it, owner-occupied and used solely and exclusively for residential purposes. There have never been any businesses operated from the Premises. As we understand it, the plaintiff (who lives a few houses down Roxbury Road) claims she. tripped and foll on a raised sidewalk flag on the public sidewalk abutting the Qrmp'bell A venue side -of the Premises (which is a corner property), approximately 37 feet fromthe comer of Campbell and Roxbury .... Froin the date we purchased and took possessidn of the. Premises in 2003 through the date of plaihtiff s accident on Febtuary 11, 20 i9, neither I hot my wife have made any repairs or perfotnted.any work to the public sidewalk at the accident location; or hired any· contractor (or anyone) to make repairs or perform any· work to such public sidewalk The 3 [* 3] 3 of 20 20 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 INDEX INDEX NO. NO. 609273/2019 609273/2' 19 RECEIVED NYSCEF: NYSCEF: 12/16/2020 12/16/2 20 ·condition of the public sidewalk at the accident location was,. in February 2019,. exactly the same as it was when we purchased the Premises in 2003, otherthan normal wear and tear caused by the weather, trees/tree toots and other forces ofnature. In approximately Apri1·2016,we hired a company to remove the. tree that was located on the lawn at the side 9f the Premises. Such tree can be seen in the [Google Streetview and Microsoft/Bing OpenStreetMap] images discussed above ... from prior to 2016; and is absent fromtheimages after 2016: Lwould point out that the defect asserted by the plaintiff, the raised public sidewalk flag, can be seen in all of the images, as· far back as those from 2 007, and appears unchanged from before a.nd after the tree was removed. The public sidewalk was not damaged or changed in any way by the removal of the tree in 2016. We do not have a driveway located at the accident location, the same· was originally further down Campbell Avenue from the accident location (and never paved, so we did not useit as a driveway), but was 1noved years before the accident date to the front of the Premises on Roxbury Road. The lack of such driveway at the accident location can be seen in the images discussed above .... Neither I nor my wife make any 'special use' of such public sidewalk, as that tei'm has been explained to me, in that We do notuse such sidewalk in any manner which would be different than how it is used by the general public. Prior to the date ofthe plaintiffs accident, February U ,2019; we neverreceived any violation from.the Town of Hempstead or any other government authority for any issue or· condition related to the public sidewalk at the Premises. We never received any complaints concerning such public sidewalk or its condition prior to February 11, 2019: We have never b.een party to any other lawsuits relating: to such public sidewalk orits condition. I understand.that the plaintiffalleged thatshetripped and fell on February i l, 2019 at approximately 1:00 p;tn, cin the public sidewalk abutting the side of the. Premises. I was not a-ware ofsuch accident until I received the summons and complaint hi this 4 [* 4] 44 of 20 20 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 INDEX INDEX NO. NO. 609273/2019 609273/2019 RECEIVED NYSCEF: 12/16/2f20 12/16/2020 RECEIWD NYSCEF, ·matter in July 2019. I did not witness the plaintiffs accident, and am. not aware of any witness to it." See id Counsel for defendants Cairo additionally contends., in pertinent part, that, "[a]s this Court is well aware; the· Court· of Appeals and the Appellate Division. Second Department have repeatedly held that liability of abutting landowners for alleged public sidewalk defects is governed by the Town or Village in which the property is located, and the ordinance or statute which obligates the owner to maintain the sidewalk must specifically provide that a breach of that duty will result iri liability to third-parties. [citation omitted]. The Court of Appeals and the Appellate Division Second Department have consistently held that a landowner does notowe any duty with regard to the public sidewalkal:,utting his property solely by reason of his ownership in the abuttingproperty. [citations omitted]. The reason for this, as the Court of Appeals has repeatedly held,is that the. municipality is the owner of the public sidewalks and as such is genetally liable forinjuries to pedestrians caused by defective flags on the same. [citation omitted]. As a result of this, liability for irijuries sustained· due to a dangernus condition on a public sidewalk is placed on the municipality, not the abutting landowner. [citations·omitted]. Since there is no general common law duty of a landowner regarding the abutting public sidewalk (which it is noted such landowner does not own), any sui;h duty would need to come from the actions of the landowner or statute. 'Generally, liability for injuries sustained as a result of negligent maintenance of or the existence of dangerous and defective conditions to public sidewalks is placed on the munidpaHty and not the .abutting; landowner.'· [citation.omitted] .... In this matter, the relevant Town of Hempstead Code~ at Chapter 181, states that the abutting landowner shail be responsible to con:strnct or repair a public sidewalk oniy after he is served with notice from the Town specifying the coristfuction or repair wo1kto. be done. [citation 5 [* 5] 5 of 20 20 INDEX INDEX NO. NO. 609273/2019 609273/2h19 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF: 12/16/2020 12/16/2 _20 RECEIVED NYSCEF: NYSCEF DOC. DOC. NO. NO. 63 63 1 omitted]. Such Code, however, does not expressly impose tort liability on the abutting landowner and, therefore, the landowner cannot be held liable to an injured thirdMparty for any alleged violation of the Code regarding repair or maintenance of the sidewalk ... , Absent the existence of a statute or ordinance specifically imposing liability, a landowner will not be liable to a pedestrian injured· by a defect in a pubHc sidewalk abutting its premises. [citations omitted].... Here, plaintiff claims that she tripped and fell over an 'elevated' or uneven section ofthe public sidewalk abutting the side ofthe Cairos (sic) home located at 3026 Roxbury Road (corner of Camp bell A venue), Oceanside, New York, 37 feet west from the corner curbline .... The Ca:iros, however, have never performed, or retained anyone else to perform, any work to that public sidewalk .... Therefore, they could not have caused or created any defective conditionthereat. Further, that portion of the sidewalk where the plaintiff fell was not adjacent to, or near, the Cairos (sic) driveway and the Cairos do not otherwise make any·special use of that portion of the pub1ksidewalk where plaintifffelL ... Moreover, to the extent that the claimed defect on the public sidewalk was the result ofthe tree that had been nearby, the Cairns would not be responsible for the same as a matter of law ... , Here, the evidence shpws that the public sidewalk at issue was not constructed in a special manner for the benefit of the Cairos, they were not making any special use of the. saine .(such as for entering or exiting a driveway), and they did not . repair or otherwise alter the public sidewalk at any time prior to the plaintiff's accident. The r~cordis devoi4 ofany evidence that the Cairos createdthe condition of which the plaintiff complains,,, See De:fendartts Cairo, s Affirmation irt Support of Motion. (Seq. No. 02) Exhibits A~F. In support of defendant TOH's cross~motion (Seq. No. 03)1 its counsel sub111its, in pertinent part, that, " [f]rom an examination ofplaintiff' s ·notice of claim,_ complaint and bill of 6 [* 6] 6 of 20 20 - - - - - - - - - - - - - - - - - - - · · - - · · · · · · · · · - · - - · · · - · · · · · · · · · - · · ............. . INDEX INDEX NO. NO. 609273/2019 609273/2019 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 RECEIVED NYSCEF, NYSCEF: 12/16/2020 12/16/2f20 particulars, it seems that plaihtiff, Raquel Turcios allegedly had an accident on February 11, 2019, when she tripped and fell on the sidewalk located west ofthe northwest comer of Campbell Road and Roxbury Road oti the Campbell side of the property known as 3026 Rox bury Road in Oceanside, New Yark (hereinafter the 'subject accident location 'J. It is alleged thatthe sidewalk at the subject accident location was in a defective condition. The basis ofliability against the Town of Hempstead rests on allegations in the notice ofclaim, complaint and bill of particulars that the Town negligently owned, operated, managed, maintained, repafred, inspected, constructed, controlled and caused and/or created the alleged sidewalk condition, all of which caused plaintiffs alleged injuries. It is submitted that such assertions are merely conclusory and unsupported by evidentiary facts sufficient to raise a triable issue or to warrant a denial of the within cross-motion. As such, this action as against the Town should be dismissed. [citations omitted];'' In support ofits motion, defendant TOH submits the Affidavit of Laura Taranto ("Taranto"), a clerical employee of the Sidewalk Division of the Highway Department of the Town of Hempstead. See Defendant TOH's Affidavit in Support. Taranto states, in pertinent part, that, "[f]rom the facts contained in plaintiff's notice ofclaim, itis alleged the plaintiff, Raquel Turcios, had an accident when she tripped and fell on the sidewalk located west of the northwest comer of Campbell Road and Roxbury Road on the Campbell Road side ofthe property known as3026 Roxbury Road in Oceanside,New York (hereina:fterthe 'specific.(sic) accident location;). The accident is alleged to have occurred on Febrtlary ·l t .2019. A personal computerized search·of the records of the Sidewalk Division of the Highway Departnientof the Town of Hempstead r~garding ·repa:h-s disclosed that the Towrt of Hempstead ciid not perfoi:m any affirmative acts to the sidewalk at the subject accident location and did norrepafr, construct, 7 77 of 20 20 [* 7]- - - - - - - - - - - - · · · · · · · · · - · - - · · · - · · · · · · · · · · - · · .................................................. --. .......... J FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 INDEX INDEX NO. NO. 609273/2019 609273/2' 19 RECEIVED NYSCEF: NYSCEF: 12/16/2020 12/16/2 20 inspect, replace or design the sidewalk at the subjectaccident location ort or for five (5) years prior to February 11, 2019, Further,m:y personal search ofthe aforesaid indicatesthattheTown of Hempstead did not contract with any nturticipality,. contractor or ertti ty. to repair or maintain, the sidewalk at the subject accident location on or for five ( 5) years prior to Fe bmary 11, 2019. Additionally, I p.ersonally conducted a computerized search of the records of the Sidewalk Division of the Highway Department of the Town of Hempstead, including notices received by the Office of the To\¥11 Clerk of the Town of Hempstead with regard to anyprior written complaints, oral complaints, telephonic complaints and notices of claim. Saidresearch revealed no evidence of prior written notice, prior· written complaints, prior oral complaints, prior telephonic complaints or prior notices of claim regarding any issues or conditions regarding the sidewalk at the subject accidentlocation on or for five (5) years prior to February 11, 2019;" Id. Counsel for defendant TOH further argues that, '' [p] ursuant to Chapter 6 of the Code· of the.Town of Hempstead; specifically Section 6-3;.and §65~a, subd. 2 of the Town Law of the State of New York, receipt of prior written notice is a condition precedenfto the maintenance of a civil action against the Town.for injuries arising froma defective sidewalk. Plaintiff has failed to submit any proof indicating the. e::<istence of prior written notice of the aHeged defect.. Fmther, there is no evidence that theTown caused and/or created the sidewalk condition that allegedly caused plaintiff's injuries. Therefore, 110 action can be maintained against the Town. [citations omiued]" ·t'.Jounsel·for·defendantTOH addS:;ih pertinent part, that;.'iin the case at bar~ arty claim by plaintiff that the defendant Town, s motion should be denied pertdirtg further discovery as to the Town .is. totally without merit. The defendant Town has submitted.proof in admissible fonn (see affidavit of Laura Taranto) which dearly establishes its entitlement to suntmaryjudginen:t" · .8 [* 8] 88 of 20 20 INDEX INDEX NO. NO. 609273/2019 609273/2h19 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF: 12/16/2020 12/16/2 _20 RECEIVED NYSCEF: NYSCEF DOC. DOC. NO. NO. 63 63 1 In opposition to defendants Cairo's motion (Seq. No; 02) and defendant TOH's cross-motion (Seq. No.03), counsel for plaintiff argues, in pertinent part,that, "[d]efendants' Motions for Summary Judgment must be denied because Plaintiff (sic) failed to meet its (sic) initial burden by present(sic) evidence as to its lastinspection of the location of the accident; Iiability exists under (sic)· ToWi.1 of Hern pstead Code and questions of fact regarding the construction and landscaping work performed by Defendants at or near the location of the accident which can only be determined through further discovery, this making this motion premature .... The accident site was inspected by Robert T: Fuchs, P.E. ofthe firm of Paul J. Angelides, P.E., P.C. Mr. Fuchs was advised ofthe accident location by Ms. Turcios and he performed his inspection atthatlocation .... Mr; Fuchs and the.firm of Paul J. Angelides, P.E., P.C. concluded a. At the location where Ms. Turcios tripped, there was 'an abrupt l ¼ inch high difference in elevation thafposes an inherent tripping hazard to pedestrians' andthat 'such abrpt (sic) difference in elevation along the sidewalk was the proximc1.te cause ofMs. Turcios' accident.' b. The raised and uneven condition existed for over 11 years and 'occurred because the sidewalk has been lifted due to pressure imposed by underlying and growing roots of a ne1',\rby tree that was located within the left side yard of 3026 Roxbury Road, c. 'The failure to maintain the sidewalk in a good, safe condition is an omission on behalf of the adjoining property owner at 3026 Roxbury Road that violates § §181-l Land l84-6(a) of the Code of the Town ofHempstead, along with §J()2:3 of the 2015 International Property Maintenance Code (IPMC), The accident was preventable had.fue hazardous condition of the sidewalk been corrected in a thnely manner and not deferred for many years\" See Plaintiff's Affirination in Opposition to Motion (Seq. No, 02) and Ctoss.:Motiori (Seq. Nc,, 03) ExhibitD. 9 [* 9] -----···················-··· 9 of 20 20 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM INDEX INDEX NO. NO. 609273/2019 609273/2h19 NYSCEF: 12/16/2020 12/16/2 _20 RECEIVED NYSCEF: NYSCEF DOC. DOC. NO. NO. 63 63 1 Counsel for plaintiff further asserts, in pertinent part, that, "[d]efendant (sic) Cairo's {sic) 'proof upon its {sic) summaryjudgrrtent in this case is that certain images show thatthe defect was 'exactly the same as it was when we purchased the Premises in 2003. 1 The Cairo Defendants each submitted Affidavits which are virtually identical. Defendants' Affidavits fail to offer any proof as to when they last inspected or viewed the subject accident site. Defendants do not say the first time they viewed the accident site so as to establish some foundation that the accident remained •exactly the· same,' It is• unknown when or ifthe Defendants personally viewed this defective condition. Thus, neither of the defendant's (sic) witnesses can state one way or another what this area of the sidewalk looked like on the date of the accident, the day before the accident or ft ye years· before the accident other than what they claim to see through a photo. Thus, the. defendants cannot negate the existence ofconstructivenotice and the defendant (sic) has failed to meet its (sic) burden of proof. Likewise,Defendant Town of Hempstead failed to set forth evidence showing when it last inspected or reviewed the accident location or the Premises in general. Defendants failure to present such evidence is even more concerning because the Cairos acknowledge performing work at or near the accident site which consists of removal of a large tree. It can also be fairly concluded that the Cairns also put up a fence which would require a permit from the Town of Hempstead, or that one was put up between 2007 and 2014 .. , . If a fence is put up in the Town.of Hempstead, a permit is required. The Town also performs an inspection of the fence after it is put up to insure that it complies with Code. The Town fails to state even when that inspection took place. As such, the. Defendants faih.1.te·to present evidence .showing when the Pi·e1111ses and the accident site was last inspected• requires the denial or Defendants' Motion and Cross-Motion for Summary Ju,dgfuent." 10 [* 10] 10 of 20 20 INDEX INDEX NO. NO. 609273/2019 609273/2~19 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 RECEIVED NYSCEF: NYSCEF: 12/16/2020 12/16/2 v20 1 Counsel far plaintiff contends, in pertinent p11rt, that, ''[t]he plaintiffs accident occurred as the result ofa defective condition that existed on the defendants' premises ... Furthermore; the defendant (sic) knew or should have known of the defect because it existed on the property for an extended period of time ..... In this case; the area where plaintiffs accident·occurred was clearly ndt maintained, kept in safe repair or free from obstructions due to the presence of the abrupt elevation in height of the sidewalk slab. The Defendants acknowledge that the condition existed for an extended period of time dating back many years. A simple inspection ofthe location would have revealed this dangerous condition to the Defendants; but the Defendants failed to present evidence as to when they last inspected that locatiort. Since the defective condition existed for so many years, itisreasonable to conclude and precedent requires that the Defendants be deemed to have constructive notice ofthe defective location. Defendants argue that Plaintiffs action must be dismissed because the Town ofHempsteacl Code imposes an obligation upon the abutting property owner to maintain a sidewalk, it does notimpose liability. However, Defendants Cairo fail to address violations under Chapter 184 of the Code of the Town of Henipstead. Chapter 184 of the Code of the Town of Hempstead concerns Tree Preservation .. ,. Further, § 184-6·ofthe Code ofthe Town of Hempstead establishes the defendant {sic) Cairo's (sic) duty to maintain the curbside. trees adjacent to the property and to repair any portion of the adjoining sidewalk that has been damaged by those sidewalk tree's roots .... Quite significantly; and unlike Chapter 181 of the Town Code concerning sidewalk maintenance, § 184-12 of the Town of Hempstead code (sic) concerns.tree preservation and p:rovides iri pertinent part as follows: 'B. in addition, this ciiaptermay be enforced by civil action .... ' As such; a violation of Chapter 184 of the Town Code allows for a civil action to be coininertced and liability to attach for the violation of Chapter 184. At the· very leas.t there are 11 [* 11] 11 of 20 20 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 INDEX INDEX NO. NO. 609273/2019 609273/2019 RECEIVED NYSCEF, NYSCEF: 12/16/2020 12/16/2f20 several questions of fact as to matters concerning the effects that the tree and tree removal on the Pre1nises near the accident site had on the sidewalk slab arid the sidewalk in generalthatwould lead a reasonable person to believe caused,· created, worsened or exacerbated the defective condition.'' Counsel for plaintiff further argues, in pertinent part, that, "[iJtis also respectfully submitted that this Court should deny defendants' suminary judgment motion (sic) as premature pursuant to CPLR 3212(±) .... In this. Case, it is clear that further discovery will reveal material facts in the movant's exclusive knowledge. It is indisputable thatfecords relating to the work done by the agents, servants, employees, contractors, subcontractors, and suppliers of the Cairo defendant (sic) prior to plaintiffs accident are crucial to the liability issues presented by this case. The Affidavits of the Cairos and the pictures revealed in the Cairo's (sic) Motion and the Report of Paul Angelides establish that not only did the Cairos remove a large tree adjacentto the accident site; but they also had alatge fence installed adjacent to the accident site. Discfosure of the afoi"ementioned project records and deposition of the Caitos and their contractor is necessary in this case in ordet to clarify whetq.er or hot the defect existed in its current condition or worsened upon the removal of the large tree and placement of the fence in the location abutting the sidewalk slab where the accident occurred." In reply to plaintiffs opposition, counsel for defendants Cairo argues,in pertinent part, that, "[t]he Plaintiff's final 'evidence: in opposition is the June 24, 2019 report from Robert T. Fuchs. Tpresume that tht! pla1ntiffis proffering ,such as.art 'ex:pert report' of.Mr .. Fuchs, though the same fails to set forth the basis of Mr .. Fuchs' purported expertise, otherthanproviding·a bunch of initials after his name. The report also fails to provide.Mr, Fuchs' curricuiurn. vitae, such that the undersigned has rio idea of his ti'airting, expertise ot arty other facforthat would 12 12 of 20 20 [*- -12] - - - - - - - - - - - - - - - - - - - - · · · · · · - · - · · · · · · · · · - · · · · · · · · ................ . FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 INDEX INDEX NO. NO. 609273/2019 609273/2019 RECEIVED NYSCEF, NYSCEF: 12/16/2020 12/16/2f20 bear upon his purported expertise in whatever area plaintiff claims he is an expert, Based Upon this, the report of Mr. Fuchs should be rejected as an·' expert report' and his· purported opinions.· not considered on this motion .... Lastly, the 'expert report' is also not an: affidavit, or otherwise sworn td under oath, and·as such is not in admissible form, cannot be considered in opposition and is insllfficient to raise any isslle of fact. Icita_tions omittedJ. Based upon the foregoing case law, the report of Mr, Fuchs is not in admissible form to oppose this motion, and his opinions lack any basis to be considered 'expert' opinions as there.is no evidence regarding his education, training or experience to determine ifhe is, in fact, an 'expert' in any field relevant to the claims asserted herein. This report should be wholly rejected by the Court as it is inadmissible in form and its contents are not competent evidence to raise arty issue of fact Should the Court consider the report of Mr. Fuchs in connection with this motion, it must be noted .. , t4at J\1r. Fuch~ (sic) .opinion is that the defect at· issuewas ·caused by the roots of a nearbytree, for which the Cairos would not be responsible as a matter of law. Moreover; Mr. Fuchs notes thatthe condition ofthe sidewalk at issue (caused by the ttee roots) does not change following the removal of the nearby tree, providing photographs from before and after the removal that unequivocally prove this point." See Plaintiffs Affirmation in Opposition to Motion (Seq. No: 02) and Cross-Mot.ion (Seq. No. 03) ExhibitD, CounseLfor defendants Cairo further asserts;in pertinent part, that, "counsel's argument that there is an issue of fact as to whether or not any contractors hired by the {~airos to perform .such work• (tree removal and· fence installation) damaged the. sidewalk is refuted by the admissible photographs submitted by the Caires , .. showing that the condition of the sidewalk before and after such work was perfonnedwas exactly the same. Itis als.o contradictory ofthe observations made by Mr. Fuchs. irt the report submitted by the plaintiff; and which plaintiff' [* 13] 13 of 20 20 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 INDEX INDEX NO. NO. 609273/2019 609273/2~19 RECEIVED NYSCEF: NYSCEF: 12/16/2020 12/16/2 v20 1 would have this· Court rely. Moreover,. this argumentis also without legal basis since controlling case law holds that aproperty owner is not liable for a dangerous condition created by the negligence of an independent contractor in petionning wor~ upon the property. [citations omitted]."·See Defendants Cairo's Affirmation in Support ofMotion(Seq. N9. 02) Exhibit F; Plaintiff's Affirmation in Opposition to Motion (Seq. No. 02) and Cross"'.Motion (Seq. No. 03) ExhibitD. Counsel fordefondants.Cairoalso argues, in pertinentpart,that, '\[p]laintiff (sfr) counsel asserts that the Cairns' motion cannot be granted as they failed to address Chapter L84 of the Code of the Town of Hempstead, which involves Tree Preservation. Counsel states that such statute is different from Chapter 181 {concerning· sidewalk maintenance) as it contains a provision that it may be enforced by civil action. Counsel however misrepresents· Such provision, which states that the chapter may be enforced by civil action, including an injunction; and that the Town may direct the replacement of any trees improperly removed or destroyed. The additional code cited by the plaintiff does not meetthe requirement of 'Specifically state that a breach of that duty will result in the landowner's liability to those who are injured'." It is wel I settled that the· proponent of a motion for summary judgment must make a pri,na facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues ofiact. See Sillman v. Twentieth Century- Fox Film Corp., 3 N.Y.2d 395; 165 N.Y.S.2d 498 (1957);Alvarez v. Prospect Hospitat 68 N.Y.2d 320, 508N.Y.S,2d 923 (1986); ZuckeNnan v. City o.fNew York, 49 N.Y.2d 557t 427 N.Y.S.2d 595 (1980): Bhatti v. Roche, 140 A.D.2d 660, 528'N.Y.S.2d 1020 (2d Dept. 1988). Ta: obtainsumni.aryjudgritent; the.moving party must establish.its claim or defense byteridering sufficknt evidentiary proof, in. admissible. form, sufficient to 14 [* 14] 14 of 20 20 warrant the court, as a matter of FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 INDEX INDEX NO. NO. 609273/2019 609273/2~19 RECEIVED NYSCEF: NYSCEF: 12/16/2020 12/16/2r20 law, to direct Judgmentinthemovant's favor. See Friends :ofAnimals, Inc. v. Associated Fur Mfrs:, inc., 46 N.Y.2d I 065; 416 N,Y.S.2d 790 (1979). Such evidence may include deposition ·transcripts; as well as other proof annexed to an attorney's affirrn:ation; See CPLR§ 3212 (b); Olan v. Farrell Lines inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 {1985). If a sufficientprima Jacie showing is demonstrate.cl, the burden then shifts to tlie non--moving party to come forward with competent evidence to. demonstrate the existence of a material issue of fact, the existence of which necessarily prechides the graritirtg of summary judgmerttand necessitates a trial. See Zuckerman v. City ofNew York,.supra; When considering a: motiort for sumnmry judgment, the function of the court is not to resolve issues butrather to determineifany such material issues of fact exist. See Sillman v. Twentieth Century-Fox Film Co,p., supra. Mere conclusions or unsubstantiated allegations are ins:ufficientto raise a triable issue, See Gilbel'tFrank Corp. -v. Federal Ins. Co., 70N.Y.2d 966,525 N.Y.S2d 793 (1988). ;Further, to grant summaryjudgment,it must clearly appear thatno material triable issue offactigpresented. The burden oh the court in deciding this type. of motion is notto resolve . issoes of fact or detel'mine matters of credibility, but merely to determine whether such issues exist. See Barr v: Albany Co14nty, 50 N.Y.2d 247,428 N.Y.S.2d 66$(1980); Daliendo v. Johnson, l47A.D.2d 312,543 N.Y.S.2d 987 (2d Dept. 1989). Issue finding, rather than issue determination, is the key to summary judgment. See In re Cuttitta Family Trust, 10 A.D.3d656; 781 N.Y.S.2d 696 (2d Dept.2004); Greco v. Posillico, 290 A.D.2d 532, 736 N. Y.S.2d 418 (2d Dept. 2002); Gniewek v. Consolidated Edison Co., 271 A.D.2d643, 707 N.Y.S.2d 87i (2d Dept. 2000)\ Judice v. DeAnge/o,272 A.D.2d 583, 709 N.Y.S.2d 427 (2d Dept. 2000). The court should refrain from makfog credibility de.terminations (see.SJ. Cape/in Assoc: v. GlobeMfg'.·Corp., 34 N:Y.2d338, 357 N:Y;S:2d 478(1974); Surdo V; 15 [* 15] - - - - - - - - - - - - - · · - - · - · · · · · · · · · · · · · 15 of 20 20 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM INDEX INDEX NO. NO. 609273/2019 609273/2h19 NYSCEF: 12/16/2020 12/16/2 _20 RECEIVED NYSCEF: NYSCEF DOC. DOC. NO. NO. 63 63 1 Albany CollisionSupply, Inc.,. 8 A.D.Jd 655; 779 N.Y.S.2d 544 (2d Dept. 2004); Greco v. Posillico, supra; Petri v; Half Of/Cards, Inc., 284 A.D2d 444, 727 N.Y.S.2d455 (2d Dept 2001 )), artd the papers should be Scrutinized carefully in the light most favorable to the party opposing the motio11. See Glover v. City ofNew York, 298 A,D.2d 428, 74RN.Y.S.2d 393 (2d Dept. 2002); Perez v. Exel Logistics, Inc;,278 A.D.2d 21 J, 717N.Y.S.2d 278 (2d Dept.2000). Summary. judgment is a drastic remedy. which should not be granted when there is any. . doubt aboutthe existence of a triable issue of fact. See Sillman v. Twentieth Century-Fox Film C01p., supra. It is nevertheless an appropriate tool to weed out meritless claims. See Lewis v. Desmond, 187 A.D.2d 797,589 N.Y~S.2d 678 (3d Dept. 1992); Grqyv. Bankers Trust Co; of Albany, NA., 82 A.D.2d.168, 442 N.Y.S.2d 610.(3dDept. 1981). With respect to defendants Cairo'smotion(Seq. No. 02), generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner. See Hauser v. Giunta, 88 N.Y.2d449, 646 N.Y.S.2d 490 (1996): Liability to abutting landowners for injuries sustained as a result of negligent maintenance of or existence of dangerous and defective conclitions of public sidewalks will generally be imposed where the sidewalk was constructed in a special manner for benefit of the abutting landowner, the abuttingowner affirmatively caused the defect, the abutting landowner negligently constructed or repaired the sidewalk or a local ordinance or statute specifically charges tl1e abutting landovmer with a duty to maintain and repair sidewalks and imposes liability for irij uries resulting front a breach of that duty; See id ;.Lahens v.. Town of Hempstead; 132 AD3d 954i.18N.Y,S.3d 187(2d Dept 20.15). The Court finds that, based nor con:tribut~d to, upon the evidence before it, .clefendarits Cairo neither caused, any alleged defect in the subject sidewalk. Additionally; there is no provision 16 16 [*- -16] -------------·························-················· of 20 20 INDEX INDEX NO. NO. 609273/2019 609273/2019 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 RECEIVED NYSCEF, NYSCEF: 12/16/2020 12/16/2f20 whereby liability .shifts from the municipality to the abutting landowner for injuries to third parties on public sidewalks. SeeLagawo v, Myetsr146 A.D.3d 1056, 52N.Y.S.3d 487 (2d Dept. 2017), Furthermore, there is no evidence<of special use by defendants Cairo. Additionally, the Court finds that plaintiffs purported expert report is not sworn to, nor affirmed, and, therefore, does not constitute competent evidence. Unsworn reports that do not indicate that a person has the education and experience to qualify as an expert are insufficient to raisea triable issue of fact and defeat a motion for summary judgment. See New York Cent: Mutual Fire Ins. Co. v. Titrnerson's Elec:, Inc,, 280 A;D.2d 652; 721 N.Y.S.2d 92 {2d Dept. 2001). See also 1212 OceanAve. HousingDevelopment Corp; v. Brunatti, 50 A.D.3d 1110, 857 N;Y.S.2d 649 (2d Dept. 2008) (holding that un.swomreports from two engineers submitted in support ofapplication were not in admissible form); Ellis v. Willoughby Walk Corp. Apartments, 2 7 A. D .3 d 615, 81 l N. Y. S .2d 775 (2d Dept. 200(i) (holding that the unsworn -engineer's report v,ras not in admissible form for summaryjudgment); Mecabe by Mecabe v. Shmulevich, 209 A.D.2d 593 1 619 N.Y.S2d I 08 (2d Dept. 1994) (holding that plaintiffs failed to meet their burden as the report prepared by their expert was hot in admissible form). Moreover:, the motion (Seq. No. 02) for summary Judgment was not premature, since plaintiff foiled to offer.an evidentiary basis to suggest that the discovery may lead to relevant evidence. Plaii1tiffs "hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery was·an insufficient basis for denying the motion." Conte v. Frelen Assoc., iLc, Sl A,D.3<! 620,858 N.Y.S.2d 258 (2dDept. 2008). Slle also Lopez v. WS Distrib., /rip., 34 A.D.3d 759, 825. N;Y.S,2d.S16 (2d Dept. '.2006) . . 17 [* 17] 17 of 20 20 INDEX INDEX NO. NO. 609273/2019 609273/2 19 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 RECEIVED NYSCEF: NYSCEF: 12/16/2020 12/16/2 20 Consequently, based upon the a,bove, defendants Cairo's motion (Seq. No. 02), pursuant to CPLR § 3212, for ail order granting smrunary judgment dismissing plaintiff's Verified Complaint as against them, and any and all cross-.daims as againstthem, is hereby GRANTED. With respect to defendantTOH's cross~motioll(Seq. No. 03); in derogationofthe common law, a municipality may avoid liability for injuries sustained as a result of defects or hazardous conditions on its public property by means ofprior written notification laws. See Amabile v. City of Buffalo, 93 N.Y.2d 471, 693N.Y.S.2d77 (1999). An exceptionto the prior written notice laws exists where the municipality creates the defective condition through ail affirmative act of negligence. See id. Actual or constructive notice of a condition are insufficient to satisfy the requirement of priorwritten notice under the Town Code. See id,; Magee v. Town of Brookhaven, 95 A.D.3d 1179; 945 N.Y.S.2d 177 (2d Dept. 2012). ''Where, as here, a municipality has enacted a prior written notice statute, itmay not be subject to_liability for personal injuries caused ·by-a defective street-or sidewalk condition unless it has rec:ei ved prior wtitten notice of the defect or an exception to the notice requirement applies, See Despositio v. City of Net11 York, 55 A.D.Jd 659, -866 N.Y.S.2d248 (2d Dept. 2008); So/lowen v. Town of Brookhaven, 41A.D,3d816, 841 N.Y.S.2d 351 (2d Dept.2007);Katsoudas v. City of New York, 29 A.D:3d 740, 815 N. Y.S.2d 243 (2d Dept. 2006); Borgorova v. Incorporated Village ofAtlantic Beach, 51 A.D.3d 840, 858 N.Y.S.2d 359 (2d Dept. 2007). See also Poirier v. City ofSchenectady; 85 N.Y.2d 310,624 N.Y.S.2d 555(1995). There are two recognized exceptions to -this rule, "namely, where the locality created the defect or hazatd throtigh an affirmative act of negligence [and] where a 'special use' confers a special benefit upon the locality." See Amabile v. City of Bujjalo,_supra. See _a/so Lopez v. G & j 18 18 of [* 18] ----------------------------------------------------------- 20 20 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 INDEX INDEX NO. NO. 609273/2019 609273/2019 RECEIVED NYSCEF, NYSCEF: 12/16/2020 12/16/2r20 Randolph Inc., 20 A.D.3d 511, 799 N'.Y.S,2d 254'(2d Dept. 2005); Filaski.,Fitzgeraldv. Town of Huntington, 18 A.D.3d 603, 795 N.Y.S2d 614 (2d Dept. 2005). The Court holds that Section 6-Jofthe Code of the Town ofHempstead andSection 65-a (2) of the New York Town Law apply to the instant action. Therefore, since said statutes apply in the instant matter, no civil action based on the alleged defective condition of the subject s_iq.ewalk may be maintained against defendant TOH unless said defendant had written notice of the subject condition prior to the accrual of the claim. ·Through the Affidavit of Laura T arartto,. defendant TOH has demonstrated that no such written notice was received ih this matter pertaining to the subject area of the alleged defect that caused plaintiff's injuries. Based upon the evidence and legal arguments presented by defendant TOH, the Court finds that defendant TOH has established aprimafacie showing thatit had rto prior written notice of the condition allegedto have caused plaintiff's fall. See Gianna v. Town of Islip, 230 A.D.2d 824, 646 N.Y.S.2d 707 (2d Dept. 1996); Goldberg v. TownofHempstead, 156 A.D.2d 639, 549 N. Y.S.2d 13 8 (2d Dept. 1989). Once defendant TOH satisfied· its burden, plaintiff was required to come forward with admissible evidence to raise art issue of fact as to whether written notice was given ot whether said defendant "created the defect or hazard through an affirmative act of negligence [and] where a 'special use' confers a special benefit upon the 1ocalhy." SeeAmabile v. City of Buffalo, supra. The Court finds that, in her opposition, plaintiff has failed to raise an issue of fact as to whether defendant TOH creati;.ld tfie defect or hazard thrpugh an affirmative· act of 11egligence [and] where a ''special use'' confers a special bene.:fit upon said locwity, 19 [* 19] 19 of 20 20 INDEX INDEX NO. NO. 609273/2019 609273/2019 FILED: NASSAU COUNTY CLERK 12/18/2020 12:30 PM NYSCEF DOC. DOC. NO. NO. 63 63 RECEIVED NYSCEF, NYSCEF: 12/16/2020 12/16/2f20 One~ again, the cross'."motion (Seq. No. 03)for summary judgment was not premature; since plaintiff failed to offer an evi deritiary basis to suggest that the discovery may lead to relevant evidence, See Conte v, FrelenAssoc.; LLC, supra; Lopez v, WSDistrib., Inc;, supra,6); Accordingly, defendant TOH's cross-motion (Seq. No. 03), pursuiµitto CPLR § 3212, for an order granting summary judgment dismissing plaintiff's Verified Complaint as againstit, and ·. . . any and all cross-claims as against it, is hereby GRANTED. This constitutes the Decision and Order of this.Court. ~~~ ~··.·T.ER··.·:: . .·. DENISE L.· SHER, A;J.S.C. XXX ENTERED .Dated: Mineola, New York December 16:, 2020 Dec 18 2020 NASSAU COUNTY COUNTY CLERK'S OFFICE .20 [* 20] 20 20 of 20 20
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