DeMatteo v Celwyn Co., Inc.

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DeMatteo v Celwyn Co., Inc. 2021 NY Slip Op 33804(U) January 27, 2021 Supreme Court, Nassau County Docket Number: Index No. 610704/2020 Judge: James P. McCormack 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. 610704/2020 610704/2010 FILED: NASSAU COUNTY CLERK 02/03/2021 11:21 AM NYSCEF DOC. DOC. NO. NO. 32 RECEIVED NYSCEF: NYSCEF: 02/01/2021 02/01/2021 SUPREME COURT- STATE OF NEW YORK PRESENT: Honorable James P. McCormack Justice ------------------'x VICTORIA DEMATTEO, TRIAL/IAS, PART 12 NASSAU COUNTY Plaintiff(s); Index No. 610704/2020 -againstCELWYN COMPANY, INC., TOWN OF HEMPSTEAD, COUNTY OF NASSAU, NASSAU INTER.:COUNTY EXPRESS and METROPOLITAN TRANSPORTATION AUTHORITY, Motion Seq. No,: 001 Motion Submitted·: 12/21/2020 Defenda~t(s). _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x The following papers read on this motion: Notice of Motions/Supporting Exhibits ........................................ XX · .. · ..........·, .. ., ................... ,..... .,. .................., ... ,.;X . Jn . ·0.: ppOSltion AffiIrmatlOil Defendant, County ofNassau (County), moves this court ·foranorder, pursuantto· CPLR §321 l(a)(7), dismissing the complaint against it. Plaintiff, VictoriaDeMatteo (DeMatteo). oppos~s the inotion. PeMa:tteo commenced this action, sounding . in negligence, by service of a summons .and complaint dated October 2, 2020. Issue was jpfo.ed by s,ervfoeofan answerwith cross claims by Defendant Town ofHel!lpstead.dated .October 26, 2020. The County·brought this motion in Heu of an answer. - - - - - - - --'-------------·····1·--0-r---·-................ ·· 1 of 6 [* 1] INDEX NO. 610704/2020 610704/202b INDEX NO. FILED: NASSAU COUNTY CLERK 02/03/2021 11:21 AM DOC. NO. NO. ·32 NYSCEF DOC. 32 RECEIVED NYSCEF: NYSCEF: 02/01/2021 02/01/2021 In reviewing a motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211( a)(7), the court is to accept all facts alleged in the complaint as being true; accord plaintiffthe benefit ofevery possible favorable inference, artd determine only Whether the alleged facts fit within any cognizable legaltheory (see Delbene v. Estes, 52 AD3d 647 [2nd Dept. 2008]; see also 511 W. 232nd Owners Corp; v. JenniferRealty Co., 98 NY2D 144 [2002]. Pursuantto CPLR§ 3026, the complaintisto be liberally construed. Leonv. Martinez, 84 NY2d 83 [ 1994]. It is not the court's function to determine whether plaintiffwill ultimately be successful in proving the allegations; Aberbachv. Biomedical Tissue Services, 48 AD3d 716 [2nd Dept. 2008]; seealsoEBCJ, Inc. v. Goldman Sachs & Co., 5 NY3D 11 [2005]. The pleaded facts, and, any submissions in opposition to the motion, are accepted as true and given every favorable infor~nce (see 511 W 323nd Owners Corp. v. Jennifer RealtyCo.; 98NY2d at 151-152; Dci,na v. Malco Realty, Inc,, 51 AD3d 621 [2dDept 2008]; Gershon v. Goldberg, 30 AD3d3 72, 373 [2d D_ept 2006]). However, a court may . . consider evidentiary material submitted by a defendant in support of a motion to dismiss a compla.intpursuant to ·CPLR § 3211(a)(7) ·(see CPLR § 3211 [c]; .Sokol v; Leader, 74 AD3d atT181). ''When evidentiarymaterial is considered" on a motion to dismiss a complaint pursuant tp CP:LR § 3211 (a)(7), ·the criterion is whether the plaintiff has a cause ofaction; not whether they hav~ properly stated one, ·-and. unless it has been shown that a material fact as claimed is not a fact at all or that no significant dispute exists, the [* 2] or·-,:!!:'----------------······-·--·····-··· 2 of 6 INDEX INDEX NO. NO. 610704/2020 610704/20~0 FILED: NASSAU COUNTY CLERK 02/03/2021 11:21 AM NYSCEF DOC. DOC. NO. NO. 32 RECEIVED NYSCEF: NYSCEF: 02/01/2021 02/01/2021 dismissal should not be granted(Guggenheimer v. Ginzburg, 43 NY2d at 275; see Sokol v. Leader,. 74 AD3d at 1182). One cannot be heldJiahle for a dangerous or defective condition on property .unless ownership, occupancy; control or special use of the property has been established. (Ruggiero v. C{ty School DistrictofNew Rochelle, 109 A.D.3d 894 [2nd Dept 2013t Soto v. CityofNew York,. 244 A.D.2d 544 [2nd Dept 1997],James v. Stark, 183A.D2d 873 [2nd Dept. 1982]). :Herein, DeMatteoalleges she tripped and fell over the remaining piece of a brokert-offsteel or metal sign post located in front of the TriwCounty Flea Marketin . . Levittown, County ofNassau. The County alleges it does not own or maintain the area where DeMatteo allegedly fell. In support of its motion, the County offers, inter alia,the sworn affidavit of William Nimmo, Deputy Commissioner of the Department of Public Works {DPW), and a deed for the subjectproperty. In his affidavit, Mr. Nimmo states that he is familiar with the appurtenances, roadways artd sidewalks maintained by DPW. He personally searched DPW; s records which includes contracts, sidewalk complaints and repair records and determined that the area wltere DeMatteo alleges she fell was not under the jurisdiction or control of the CoWlty~ He denies that tile County mainta,ins, repairs, controls, possesses, contracts for; supervises, cortstructs, inspects, renovates, rehabilitates or alters the subject location; As for the deed, it indicates the property is owned by a private entity. 3 _______ ______________ ___ , [* 3] 3 of 6 , ·-·-·······--········ FILED: NASSAU COUNTY CLERK 02/03/2021 11:21 AM NYSCEF DOC. DOC. NO. NO. 32 INDEX INDEX NO. NO. 610704/2020 610704/202-0 RECEIVED NYSCEF: NYSCEF: 02/01/2021 02/01/2021 The County further argues it received no written notice of any defect with the subject premises. In support ofthis argument, the County suhmitsthe sworn affidavit of Robert Dujardin, Attorney's Assistant with the Litigation and Appeals Bureau ofthe office of the Nassau County Attorney. "Where,.as here, a municipality has enacted a prior written notice law, it may not be subject to liability for injuries caused by a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies" -(Waldv City of New York, 115 AD3d 939 [2dDept2014J; Phillipsv City ofNew York, 107AD3d 774, [2d Dept2013]; see Martinez v City ofNew York, 105 AD3d 1013, 1014 [2d Dept2013]). "The only recognized exceptions to the statutory prior written notice requirement involve situations in Which the municipality created the defect or hazard through an affirmative act ofnegligence, or where a special use confers a 1::>enefit upon the municipality"(Wa/dv City ofNew York, supra; Long v City atMount Vernon, l 07 AD3d 765 [2d Dept 2013]; Oboler v City ofNew York, 8 NY3d 888; 889'-890 [2007]; Miller v Village ofE. Hampton, 98 AD3d 1007~ 1008 [2d Dept 2012]). In addition, "the tt.ffil1liative negligence exception is limited to work by the [municipality] that immediately results in the existence of a dangerous condition" {Wald v City ofNew York; supra, quoting Yarborough vCUy of New York, 10 NY3d 726,728 [2007], .qµoting Oboler v City ofNew York, supra at 889). Furthennore,rteither actual rtor consttuctive.nodce pf a·given defect is su.fficient·to overcome the requirement of prior written notice (Amabilev City ofBuffalo, 93 NY2d 4 [* 4] 4 of 6 FILED: NASSAU COUNTY CLERK 02/03/2021 11:21 AM NYSCEF DOC. DOC. NO. NO. 32 INDEX INDEX NO. NO. 610704/2020 610704/2020 RECEIVED NYSCEF: NYSCEF: 02/01/2021 02/01/2021 471,474 [1998]; Caramancia v City o/New Roc:helle, 268AD2d 496 [2d Dept2000]), In order for a municipality to be held liable for a condition where no prior written notice was given, a plaintiff must set. forth competent evidence that the municipality affirmatively created the alleged offending condition in issue (see Walkerv Incorporated Village of Northport, 304 AD2d 823 [2d Dept2003J; Monteleone v Incorporated Village a/Floral Park,- 74 NY2d 917 [1989]t In his affidavit, Mr. Dujardin states that as a part ofhis job duties, he maintains the files containing notices of claim and notices of defects. He performed a search of these records going back six years from the date ofthe incident and found no written notice of a defectatthe subject location. In opposition, DeMatteo only offers the affirmation of counseL Counsel refers to the affidavit of.Mr. Dujardin as ''self serving", but an affidavit by a municipal employee which states that a thorough search has been conducted a:nd no writtennotke has been receivediscompetentevidence. (Dabbsv. City of Peeksill, 178AD2d 577 [2d Dept 1991 ]). Counsel also claims the motion should be denied because DeMatteo has notyet had the opportunity to·conduct discovery. Said discovery ''may reveal evidence to support a claim ... '' against the County. However, DeMatteo has neglected to offer any evidentiary basis to suggest that discovery may lead to :relevfil1t evidence. "The mete hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is anihs:OJficient basis upon which to deny the motion'; (Hanover In& Co. v. .5 [* 5] ------------····--···5-·-·--------------------·--·--·-······· 5 of 6 INDEX NO. NO. 610704/2020 INDEX 610704/2020 FILED: NASSAU COUNTY CLERK 02/03/2021 11:21 AM RECEIVED NYSCEF: NYSCEF: 02/01/2021 NYSCEF DOC. DOC. NO. NO. 32 .Prakin, ·s.1. AD3d 77-8 [2d Dept. 20i l]; see also-Essex Ins. Co. 11. MichaeZ.-Cunningha;ri Carpentry,_ 14 AD3d 733 [2d Dept. 2010].;. Peerless Ins.- Co. v. Micro Fif,ertek,. Irtc., 67 AD3d 978 [2d Dept 2009]; Gross v. Marc, 2 AD3d 681 [2d Dept. 2003]). AsDeMatteo does not effectively challenge any of the arguments raised by the County, the court finds .the County has established that it did not own or maintain the subject sid_ewalk and that..-it had no prior written notice of:any defect. Accordingly, it is hereby ORDERED, that the County's motion to dismiss the corttplaint against it is ·GRANTED. The.complaint and.any crossclahns are dismissed as to the._County only. Thi~ CQnstitutes the Decision and Order of the Court. Dated: January 27, 2021 Mineola, N.Y.. ENTER ED ;' Feb 03 2021 V NASSAU COUNTY COUNTY CLERK"S OFFICE 6 [* 6] eF/.P; ., McCormack, . S. C. 6 of 6

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