Hirsch v City of Long Beach

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Hirsch v City of Long Beach 2021 NY Slip Op 33262(U) January 12, 2021 Supreme Court, Nassau County Docket Number: Index No. 606455/2018 Judge: Jack L. Libert 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: NASSAU COUNTY CLERK 01/19/2021 01:57 PM NYSCEF DOC. DOC. NO. NO. 263 INDEX INDEX NO. NO. 606455/2018 606455/2018 RECEIVED NYSCEF: NYSCEF: 01/19/2021 01/19/2021 SUPREME COURT - STATE OF NEW YORK PRESENT: HON.JACKL.LIBERT, Justice. TRIAL PART 14 NASSAU COUNTY PATRICK HIRSCH, Plaintiff, -againstCITY OFLONG BEACH, CHARLES A. MACAVOY,INC., GP PILES, INC. and JANE ABITABILO as Executor of the Estate of JANE ]VJ. DUNNIGAN, MO'l'ION#02 INDEX# 606455/2018 MOTION SUBMITTED: AUGUST 18, 2020 Defendants. CHARLES A. MACAVOY, INC., Third-Party Plaintiff, "".againstDOODYMAN TO THE RESCUE, INC., Third--Party Defendant. JANE ABIT ABIL(), as Executor of the Estate of JANE M. DUNNIGAN, Second Third-Party Plaintiff; -againstPERFORMANCE CONTRACTING OF LONG ISLAND, INC., Second Third.;P arty Defelldant. The following papers· having· bec,n read on this 111c>'~i0Ii: Notice.of Motion/Order to Show Ca11se; ..... i ...l Cross Motion/Answeriiig Affidavits .. ~ ..... '. ....... 2,, J, 4, 5, 6, 7 Reply AffidaVits .. ,. ... ,i.,.,,. .............................................. ,. .......... ~8 1. 9 ____________________.__......_...._ 1 of 4 [* 1] __________________ ,.•····--· FILED: NASSAU COUNTY CLERK 01/19/2021 01:57 PM NYSCEF DOC. DOC. NO. NO. 263 INDEX INDEX NO. NO. 606455/2018 606455/2018 RECEIVED NYSCEF: NYSCEF: 01/19/2021 01/19/2021 Defendant City moves for summary judgment dismissing the complaint as to it pursuant to CPLR §3212. Plaintiff seeks datnagesforpersonal injuries allegedly sustained on July 2, 2017 on Alabama Street (a city street) as a result of a depressed asphalt patch that caused him to be dislqdged from his motorized scooter. According to plaintiffs depositiontestimony, prior to the occurrence he was riding on the sidewalk, but he entered the roadway because he saw construction activities disrupting passage on the sidewalk. The following facts are undisputed: 1) there was no qonstruction being performed by the City at the site prior to the occurrence; 2) on October 11, 2016 the City issued a road opening permit to defendant Macavoy in connectionwith a tie in: to the main sewer line from an adjacertthome; 3) Macavoywas legally required to install a temporary patch and did so; 4) the City was required to.install apermanentpatch but had not done so prior to the time of the occurrence; 5) othet than the documents related to the road opening permit the City had no written notice of the alleged road defect. Summaryjudgment is a drastic remedy and should only be granted when_ there are no triable issues offact(Andre v, Pomeroy, 35N.Y.2d36l [1974]). The goal ofsummary judgmentis to issue find,.rathet than issue determine (Hantz v; Fleischman, 155 A.D.2d415 [2nd Dept. 1989]). The proponent of a summary judgmentmotion''mustmakeaprima/acie sh9wing of entitlement tojudgment as amatter oflaw, tendering sufficient evidence to demonstrate the absence o_f any material issues of fact'' (Alvarez v, Prospect Hosp., 68 N.Y.2d 320 [1986]). Section 256A {l) of the Long Beach City Chmter provides that no civil action based on a defective condition may be maintained unless 1he. City had written notice of the defect .. "The failure to demonstrate prior written notice .leaves: plairitiffwithout legal recovrse against the City for its purported rionfeasance or malfe~ance in remedying .a defective sidewalk. Because this prior writtennotice provision is a. limited 2. [* 2] 2 of 4 INDEX INDEX NO. NO. 606455/2018 606455/2018 FILED: NASSAU COUNTY CLERK 01/19/2021 01:57 PM NYSCEF DOC. DOC. NO. NO. 263 RECEIVED NYSCEF: NYSCEF: 01/19/2021 01/19/2021 waiver of sovereign immunity, in derogation of common law, it is strictly construed" (Katz v City of New York, 87 N.Y.2d 241,638 N.Y.S.2d 593 [1995, internal citations omitted]). Defendant City has set forth aprimafacie showing of entitlement to summary judgment.. Once the movant has demonstrated aprimafacie showing of entitlement tojudgment, the burden shifts to the party opposing the motion to produce evidentiary proofin admissible form sufficient to establish the existence ofmaterial issues of fact which require a trial of the action (Zuckerman v. City ofNew York, 49 N.Y.2d557 [19801). Plaintiff and co~defendants assert that there are such issues of fact. First whether the City's delay in installing the permanent patch was be an act of affirmative negligence, which is an exception to the immunity granted by notice statutes (see,AmabilevCityofBuffalo,93 NY2d471i603 NYS2d77 [1999]). Second, whether the road opening permit or inspection of the sewer connection constituted constructive notice of the defect. Both of these issues are grounded in legal arguments which are insufficient. The "active negligence'' exception to the notice statute is inapplicable in the case at bar. In Rodriguez v County ofWestchester, 138 AD3d 713, 29NYS_ 3d 418, (2016) the Second Department held: The City established its primafacle entitlementto judgment as a matter oflaw by demonstrating that it did not receive prior ,vritten notic.e of the snow and ice condition which caused the plaintiffs accident, asrequired by section 24-11 ofthe Charter of the City of Yonkers (see Maya v Town of Hempstead, 127AD3d 1146 [2015]; Lopez~Calderone v Lang-Viscogliosi, 127 AD3d1143 [2015]; Johnson v Braun, 120 AD3d 765, 765-766 [2014]) •.. The City1S alleged failure to remove the snow and ice from the sidewalk, or to warn ofa dangerous.condition, were acts of omission, and not affirmative acts of negligence (see Alfano v City of New Rochelle, 259 AD2d 645 [1999]; Grant v Incorporated ViL of Lloyd Harbor, 180 AD2d 716 [1992]; Buccellato v County of Nassau, J 58 AD2d 440, 442 [ 1990]): [eniphasis.s11pplied] Similarly, there is no constructive notice exception to the notice. ptovisit:m in the City Charter. The parties opposing. this motion cite Ciccare Ila v Graf, 116 AD2d 615~ 497 NYS2d 704 (2 nd D¢pt. 1986} ' ' ' .3 [* 3] 3 of 4 for FILED: NASSAU COUNTY CLERK 01/19/2021 01:57 PM NYSCEF DOC. DOC. NO. NO. 263 INDEX INDEX NO. NO. 606455/2018 606455/2018 RECEIVED NYSCEF: NYSCEF: 01/19/2021 01/19/2021 the proposition that constructive notice of a defect by a municipality may confer liability. That case i& inapplicable. In CiccareUa 110 written notice statute was asserted or considered by the cOlllt. In addition, ClccareUa was decided moreJhan ten years before the decision in Amabile v City ofBuffalo, 93 NY2d 4 71, 603 NYS2d77 [1999], whichheld: We cortcl ude that constmdive notice o ( a defect may not ovettide thestatutoty requireinent of prior written notice ofa sidewalkdefect TheLegislature has made plain its judg;mentthatthemunicipality should be protected from liabilityin these circumstances untilit has received written notice ofthe defect or obstruction. As we ha:ve previously stated, ''The state created the defendant as a political agency of government and the adjustment of its powers and duties; and ofthe relative rights of citizens andmunicipality,was the province of the legislature. * * * [Although the city charter's] tequirenientthat a written notice shall have been given to the common council, as a condition precedent to the maintenance ofan action,. [may] be regarded as harsh, correction is not to be sought from the courts, The requirement is the expression ofthe legislative wiU" (MacMullen v, City ofMiddletown, .187 N.Y. 37, 47, 79 N.E. 863). Judicial recognition of a constructive notice exception would contravene the plain language ofthe statute and serve only to undermine the rule. The Citfsrnotionfor summary judgrn~nt in its favor is granted. This constitutes the decision and order of the court DATED: January 12, 2021 ENTERED Jan 19 2021 NASSAU COUNTY COUfi)ITY CLERK'S OFFICE [* 4] 4 of 4

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