Bosch v. Inc. Vill. of Island Park

• Decision Date: 01 November 2017
• Docket Number: Index No. 606682/2015,Motion Sequence Nos. 003,004,005
• Citation: 2017 NY Slip Op 33478 (U)
• Parties: MEAGHAN BOSCH, Plaintiff, v. INCORPORATED VILLAGE OF ISLAND PARK, TOWN OF HEMPSTEAD, COUNTY OF NASSAU, DEMI'S PLACE, INC. and JOANNE FANTOZZI, or her successors, as Trustee of the Jack F. Linden and Mary Lou Linden Irrevocable Trust, Defendants.
• Court: New York Supreme Court

2017 NY Slip Op 33478(U)

MEAGHAN BOSCH, Plaintiff, v. INCORPORATED VILLAGE OF ISLAND PARK, TOWN OF HEMPSTEAD, COUNTY OF NASSAU, DEMI'S PLACE, INC. and JOANNE FANTOZZI, or her successors, as Trustee of the Jack F. Linden and Mary Lou Linden Irrevocable Trust, Defendants.

Index No. 606682/2015, Motion Sequence Nos. 003, 004, 005

Supreme Court, Nassau County

November 1, 2017

Unpublished Opinion

PRESENT: HON. JULIANNE T. CAPETOLA Justice of the Supreme Court

DECISION AND ORDER ON MOTION

HON JULIANNE T. CAPETOLA, Justice.

The following papers were read on these Motions:

Defendants. The following papers were read on these Motions: Defendant County of Nassau's Notice of Motion and Supporting Documents (Motion Sequence 003)

Defendant Joanne Fantozzi's Notice of Motion and Supporting Documents and Memorandum of Law (Motion Sequence 004)

Defendant Demi's Place, Inc.'s Notice of Motion and Supporting Documents (Motion . . Sequence 005)

Plaintiffs Affirmation in Opposition (Mo. Seq. 003)

Plaintiffs Affirmation in Opposition (Mo. Seq. 004)

Plaintiffs Affirmation in Opposition (Mo. Seq. 005)

Plaintiffs Supporting Documents (Mo. Seq. 003, 004, 005)

Defendant Joanne Fantozzi's Affirmation in Opposition and Supporting Documents (Mo. Seq. 003)

Defendant Joanne Fantozzi's Affirmation in Partial Opposition (Mo. Seq. 005)

Defendant Demi's Place Inc.'s Affirmation in Opposition (Mo. Seq. 003)

Defendant County of Nassau's Reply Affirmation Defendant Joanne Fantozzi's Reply Affirmation (004)

Defendant Demi's Place Inc.'s Reply Affirmation to Partial Opposition by Defendant Joanne Fantozzi (005)

Defendant Demi's Place Inc.'s Reply Affirmation to Plaintiffs Opposition (005) Defendant County of Nassau (hereinafter "Defendant County") in this civil action has moved, by notice of motion, for an order pursuant to CPLR §3212 granting them summary judgment and, accordingly, dismissing the complaint as against them. Defendant Joanne Fantozzi or her successors, as Trustee of the Jack F. Linden and Mary Lou Linden Irrevocable Trust (hereinafter "Defendant Fantozzi") has moved separately for the same relief. Defendant Demi's Place Inc. (hereinafter "Defendant DPI") has also moved separately for the same relief. Plaintiff separately opposed each motion, Defendants Fantozzi and DPI opposed Defendant County's motion, Defendant County submitted a reply and the motions were deemed submitted September 28, 2017

CPLR §3212(b) states, in relevant part, that a motion for summary judgment shall be granted "if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in: favor of any party". - ^:

"The standards regarding summary judgment motions are familiar and fundamental. The party moving for summary judgment 'bears the initial burden of making a prima facie showing of its entitlement to judgment as a matter of law' (Holtz v Niagara Mohawk Power Corp., 147 A.D.2d 857, 858). Once such a showing has been established, the 'burden is shifted to the opposing party to come forward with proof in evidentiary form to show the existence of genuine triable issues of fact' (Mahar v Mahar, 111 A.D.2d 501, 502; see also, Ferber v Sterndent Corp., 51 N.Y.2d 782; Cusano v General Elec. Corp., 111 A.D.2d 557). General conclusory statements, expressions of hope, and repetition of the allegations in the pleadings do not constitute evidentiary proof substantiating the party's claim and, therefore, are insufficient to defeat a summary judgment motion". Fresh Meadows Country Club v. Lake Success, 158 A.D.2d 581 (2d., Dept. 1990).

The underlying complaint alleges injuries sustained as a result of a trip and fall on a sidewalk. Defendant County argues that they did not have the requisite prior written notice about any defective sidewalk condition as required by General Municipal Law and Nassau County Administrative Code.

General Municipal Law §50-e(4) states:

"Requirements of section exclusive except as to conditions precedent to liability for certain defects or snow or ice. No other or further notice, no other; or further service, filing or delivery of the notice of claim, and no notice of intention to commence an action or special proceeding, shall be required as a condition to the commencement of an action or special proceeding for the enforcement of the claim; provided, however, that nothing herein contained shall be deemed to dispense with the requirement of notice of the defective, unsafe, dangerous or obstructed condition of any street, highway, bridge, culvert, sidewalk or crosswalk, or of the existence of snow or ice thereon, where such notice now is, or hereafter may be, required by law, as a condition precedent to liability for damages or injuries to person or property alleged to have been caused by such condition, and the failure or negligence to repair or remove the same after the receipt of such notice".

Nassau Administrative Code § 12-4.0(e) states:

"No civil action shall be maintained against the County for damages or injuries to person or property sustained by reason of any sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter being defective, out of repair, unsafe, dangerous, or obstructed or in consequence of the existence of snow or ice thereon, regardless of whether such facility be one as defined by this title or one constructed pursuant to the provisions of article six of the highway law or one constructed by the State and maintained by the County, unless such sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter was constructed by the County or by the State or under a permit issued by the County or by the State, and unless written notice of such defective, unsafe, dangerous or obstructed condition of such sidewalk, street, highway, parking field, stairway, walkway, ramp, driveway, bridge, culvert, curb or gutter or the existence of snow or ice thereon was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of or to cause such snow or ice to be removed or to make the place otherwise reasonably safe. Such written notice shall specify the particular place and nature of such defective, unsafe, dangerous or obstructed condition or the particular location of such snow or ice. Notice required to be given as herein provided shall be made in writing by certified or registered mail directed to the Office of the County Attorney, One West Street, Mineola, New York, 11501".

In support of their motion, Defendant County has provided affidavits from Veronica Cox of the Bureau of Claims and Investigat ons at the Office of the Nassau County Attorney whose job responsibilities include maintaining the Nassau County notice of claim and prior written notice files. Her affidavit confirms that no prior notices of claim had been received for the location in question for a period of two years prior to the date of the incident.

Plaintiff argues that Defendant County derived a "special use" from the location and that, therefore, no prior written notice was required.

"A municipality that has enacted a prior written notice law is excused from liability absent proof of prior written notice or an exception thereto (see Poirier v. City of Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555, 648 N.E.2d 1318; Perrington v. City of Mount Vernon, 37 A.D.3d 571, 829 N.Y.S.2d 667). The Court of Appeals has recognized two exceptions to this rule, "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" (Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104; see Delgado v. County of Suffolk, 40 A.D.3d 575, 835 N.Y.S.2d 379; Padula v. City of Long Beach, 20 A.D.3d 555, 799 N.Y.S.2d 557; Lopez v. G &J Rudolph Inc., 20 A.D.3d 511, 799 N.Y.S.2d 254)". Smith v. Town of Brookhaven, 45 A.D.3d 567 (2d. Dept. 2007).

Here, Defendant County established its entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the alleged defect, shifting the burden to Plaintiff. .

To defeat a motion for summary judgment, the opposing party must show facts sufficient to require a trial of any issue of fact. CPLR §3212(b). Thus where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so. Vermette v Kenworth Truck Co., 68 N.Y.2d 714 (1986); Forrest v Jewish Guild for the Blind, 309 A.D.2d 546 (1^st Dept 2003). "

Plaintiff, Defendant DPI, and Defendant Fantozzi argue in their opposition papers that Defendant County derived a special use from the area in question based upon the existence of a storm drain located in the concrete slab which was allegedly raised up approximately four inches from the adjacent slab, which gap was covered by a patched concrete "ramp".

It has been held that storm drains fall within the prior written notice requirement and are not exempt therefrom based upon special use inasmuch as the drainage function of the storm drain served to provide for the proper maintenance of a safe roadway and, thus, served no municipal function inuring to the special benefit of Defendant County. See, Vise v. County of Suffolk, 207 A.D.2d 341 (2d Dept. 1994); see also, Marona v. Incorporated Vil. of Mamaroneck, 203 A.D.2d 337, (2d. Dept. 1994); Poirier v....