Dutka v. Odierno

• Court: New York Supreme Court Appellate Division
• Citation: 43 N.Y.S.3d 409,145 A.D.3d 661,2016 N.Y. Slip Op. 08196
• Parties: Paula DUTKA, et al., appellants, v. Nikolette Dandra ODIERNO, et al., respondents, et al., defendants.
• Decision Date: 07 December 2016

145 A.D.3d 661
43 N.Y.S.3d 409
2016 N.Y. Slip Op. 08196

Paula DUTKA, et al., appellants,
v.
Nikolette Dandra ODIERNO, et al., respondents, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 7, 2016.

43 N.Y.S.3d 410

O'Connor, O'Connor, Hintz & Deveny, LLP, Melville, NY (Eileen M. Baumgartner and Silberstein Awad & Miklos, P.C. [James Baker], of counsel), for appellants.

Russo, Apoznanski & Tambasco, Melville, NY (Susan J. Mitola and Gerard Ferrara of counsel), for respondents Nikolette Dandra Odierno and Joseph J. Odierno.

Kelly, Rode & Kelly, LLP, Mineola, NY (John W. Hoefling of counsel), for respondents Richard Herlich and Betty Herlich, incorrectly sued herein as Barbara Herlich.

Carnell T. Foskey, County Attorney, Mineola, NY (Robert F. Van der Waag and Samatha Goetz of counsel), for respondent County of Nassau.

Morris Duffy Alonso & Faley, New York, NY (Arjay G. Yao, Andrea M. Alonso, Kenneth J. Pitcoff, and Stephanie Tebbett of counsel), for respondent Inc. Village of Massapequa Park.

LEONARD B. AUSTIN, J.P., SANDRA L. SGROI, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

145 A.D.3d 661

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), dated March 28, 2014, as granted those branches of the

145 A.D.3d 662

separate motions of the defendants Richard Herlich and Barbara Herlich and the defendant County of Nassau which were for summary judgment dismissing the complaint insofar as asserted against each of them, and, in effect, granted the motion of the defendant Inc. Village of Massapequa Park for leave to renew that branch of its prior motion which was for summary judgment dismissing the complaint insofar as asserted against it, which had been denied in an order of that court dated September 16, 2011, and upon renewal, vacated that determination in the order dated September 16, 2011, and thereupon granted that branch of the motion.

ORDERED that the order dated March 28, 2014, is modified, on the law, by deleting the provisions thereof granting those branches of the separate motions of the defendants Richard Herlich and Barbara Herlich and the defendant County of Nassau which were for summary judgment dismissing the complaint insofar as asserted by the plaintiff Brooke Dutka against each of them, and substituting therefor provisions denying those branches of those

43 N.Y.S.3d 411

separate motions; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

This action arises from a motor vehicle accident that occurred at the intersection of Park Boulevard and Beaumont Avenue in the defendant Inc. Village of Massapequa Park. The Village is located within the Town of Oyster Bay, in Nassau County. The plaintiffs were passengers in a vehicle driven by the defendant Michael Dutka, which collided with a vehicle operated by the defendant Nikolette Dandra Odierno. The plaintiffs allege that the accident occurred when Odierno, who was traveling eastbound on Beaumont Avenue, ran the stop sign facing her and turned left onto Park Boulevard in front of their southbound vehicle. The plaintiffs further allege, among other things, that the defendants Richard Herlich and Barbara Herlich (hereinafter the Herlich defendants), who own the property on the northwest corner of the subject intersection, were negligent in maintaining the hedges on their property in a dangerous fashion so as to obstruct the view of oncoming traffic and traffic devices at the intersection. Similarly, the plaintiffs alleged that the Village, the County, and the Town, despite prior complaints and actual notice of multiple prior accidents at the location, were negligent in failing to maintain the roadways and traffic control devices in a reasonably safe manner, and negligently permitting obstructions to remain at the location that interfered with clear lines of sight for drivers operating vehicles on Park Boulevard and Beaumont Avenue.

145 A.D.3d 663

After the completion of discovery, the various defendants filed separate motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Upon renewal, the Supreme Court properly granted that branch of the Village's motion which was for summary judgment dismissing the complaint insofar as asserted against it. "A municipality that has adopted a ‘prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies" (Abano v. Suffolk County...