Elzer v. Nassau County

Decision Date13 May 1985
Citation489 N.Y.S.2d 246,111 A.D.2d 212
PartiesCharles ELZER, III, Respondent, v. NASSAU COUNTY, Appellant, et al., Defendants.
CourtNew York Supreme Court — Appellate Division

Edward G. McCabe, Co. Atty., Mineola (Kathryn Driscoll Hopkins, Deputy Co. Atty., of counsel), for appellant.

Andrew Rosner, Garden City, for respondent.

Before TITONE, J.P., and LAZER, NIEHOFF and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a personal injury action, defendant County of Nassau appeals from so much of an order of the Supreme Court, Nassau County dated December 14, 1984, as denied its cross motion for summary judgment dismissing the complaint insofar as it is asserted against it.

Order affirmed insofar as appealed from, with costs.

The complaint alleges, inter alia, that plaintiff sustained injuries in an automobile accident caused, inter alia, by defendant County of Nassau's negligent design, construction and maintenance of Ring Road and its failure to remove a hazard (a concrete lamp post base) adjoining the roadbed which created a dangerous condition. Defendant County of Nassau cross-moved for summary judgment dismissing the complaint as against it on the ground it did not own or maintain the situs of the accident. According to an affidavit by the Deputy Commissioner of Public Works, Ring Road is privately owned.

In opposition to the cross motion, plaintiff's attorney submitted an affirmation and attached a letter from a representative of the Chicago Title Insurance Company and a photocopy of the index card maintained by the Nassau County Department of Assessment, which both state that the lot where the accident occurred is owned by the defendant county. In a reply affirmation, the county's attorney conceded its ownership of the lot but alleged that Ring Road, which crosses over the lot, is a private road created by an easement which the county granted to a private corporation. Special Term denied the cross motion for summary judgment.

The county contends that Special Term erred in denying its cross motion for summary judgment because the affirmation of plaintiff's counsel, who lacked personal knowledge of the facts, was without evidentiary value to defeat its entitlement to summary judgment. We disagree. The affirmation of plaintiff's attorney served as a vehicle for the submission of acceptable attachments which provided evidentiary proof in admissible form sufficient to create a triable issue of fact (see Dorkin v. American Express Co., ...

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  • Sutera v. Go Jokir, Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 17, 1996
    ...if a covenant so provides or in other "special circumstances." Greenfarb, 256 N.Y. at 135, 175 N.E. 649; Elzer v. Nassau County, 111 A.D.2d 212, 213, 489 N.Y.S.2d 246 (2d Dep't 1985). N.E. 538 (1900).   In the case of an affirmative eas......
  • Donato v. 455 Broadway Realty LLC
    • United States
    • New York Supreme Court
    • December 18, 2023
    ...be granted where there is any doubt as to the existence of a triable issue or where the issue is even arguable (Elzer v. Nassau County, 111 A.D.2d 212, [2nd Dept. 1985]; Steven v. Parker, 99 A.D.2d 649, [2nd Dept. 1984]; Galeta v. New York News, Inc., 95 A.D.2d 325, [1st Dept. 1983]). When ......
  • Cardinal v. Long Island Power Authority
    • United States
    • U.S. District Court — Eastern District of New York
    • March 10, 2004
    ...Sutera, 86 F.3d at 302; Greenfarb v. R.S.K. Realty Corp., 256 N.Y. 130, 135, 175 N.E. 649 (1931); Elzer v. Nassau County, 111 A.D.2d 212, 213, 489 N.Y.S.2d 246 (N.Y.App. Div., 2d Dep't 1985). The duty to prevent injuries arising from property conditions "generally depends upon `occupancy, o......
  • Cohen v. Banks
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    • New York Justice Court
    • March 28, 1996
    ...his only duty would be the passive one of permitting the defendant to enter to make her own repairs. Elzer v. Nassau County, 111 A.D.2d 212, 489 N.Y.S.2d 246 (2d Dep't 1985). The rule is different, however, for easements "owned in common and used by the co-owners." Janes v. Politis, 79 Misc......
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