DeLeonardis v. GASTON PAVING COMPANY, INC.

• Decision Date: 20 April 2000
• Parties: KATHRYN DELEONARDIS et al., Appellants,<BR>v.<BR>GASTON PAVING COMPANY, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

271 A.D.2d 839

706 N.Y.S.2d 254

KATHRYN DELEONARDIS et al., Appellants,

v.GASTON PAVING COMPANY, INC., Respondent.

Spain, J.

Decided April 20, 2000.

Mercure, J. P., Crew III, Carpinello and Graffeo, JJ., concur.

Spain, J.

In January 1997, plaintiff Kathryn DeLeonardis (hereinafter plaintiff) allegedly sustained personal injuries on an asphalt sidewalk installed by defendant in June 1996 at plaintiffs' residence when her foot slipped off the edge of the sidewalk onto the adjacent lawn, causing her to fall. Plaintiff and her husband, derivatively, commenced this action alleging that the height differential between the sidewalk and lawn constituted a dangerous condition created by defendant's negligence in failing to properly construct the sidewalk. Following joinder of issue and discovery, defendant moved for summary judgment dismissing the complaint relying upon, among other things, the affidavit of an expert who opined that the sidewalk complied with applicable industry regulations and standards. Rejecting plaintiffs' expert proof, Supreme Court granted defendant's motion and dismissed the complaint. Plaintiffs appealed and defendant moved to dismiss the appeal as untimely taken. This Court withheld decision and directed that the motion be decided together with the appeal. Upon review, we conclude that defendant's motion to dismiss the appeal should be denied but the order granting defendant summary judgment should be affirmed.

Initially, defendant contends that the appeal should be dismissed as untimely inasmuch as plaintiffs' notice of appeal, filed May 12, 1999, was not filed within 30 days after they were assertedly served with a copy of Supreme Court's order with written notice of entry on March 10, 1999 (see, CPLR 5513 [a]). While defendant's affidavit of service indicates that a copy of the order with notice of entry was mailed to plaintiffs' counsel on March 10, 1999, creating a presumption that proper service was completed by mailing on that date (see, CPLR 2103 [b] [2]; Strober King Bldg. Supply Ctrs. v Merkley, 266 AD2d 203), plaintiffs sufficiently rebutted the presumption. Plaintiffs' counsel submitted sworn proof demonstrating that their diary of incoming mail maintained in the usual course of business and office practice did not contain any record of the order and notice of entry purportedly mailed on March 10, 1999 (cf., Strober King Bldg. Supply Ctrs. v Merkley, supra; A & B Serv. Sta. v State of New York, 50 AD2d 973, 974, lv denied 39 NY2d 709). It is undisputed that plaintiffs' counsel ultimately received a copy of the order with notice of entry on or about May 10, 1999 and, accordingly, we deem plaintiffs' notice of appeal filed two days later to be timely.

Turning to the merits, we concur with Supreme Court's assessment that the expert proof offered by defendant was sufficient to satisfy its burden of demonstrating that the sidewalk was not negligently constructed and that plaintiffs' opposing proof was insufficient to raise a triable issue of fact with regard to defendant's negligence (see, Zuckerman v City of New York, 49 NY2d 557, 562; Pigliavento v Tyler Equip. Corp., 248 AD2d 840, lv dismissed and denied 92 NY2d 868; Wolfson v Nevele Hotel, 222 AD2d 881; cf., Reinemann v Stewart's Ice Cream Co., 238 AD2d 845). The gravamen of plaintiffs' claim is that defendant was negligent when it paved the subject sidewalk in failing to fill and grade the lawn landscaping adjacent to the sidewalk so as to minimize or eliminate the height differential between the sidewalk and the lawn. On its summary judgment motion, defendant submitted...