Goldstein v. Vill. of Farmingdale
| Decision Date | 17 September 2020 |
| Docket Number | Index 606286/2018 |
| Citation | 2020 NY Slip Op 34787 (U) |
| Court | New York Supreme Court |
| Parties | AMY GOLDSTEIN, Plaintiff, v. VILLAGE OF FARMINGDALE, CHRIS ANDERSON LLC, AA TIRE & SERVICE INC. d/b/a GOODYEAR, and COUNTY OF NASSAU, Defendants. |
Unpublished Opinion
DECISION AND ORDER
The following submissions, in addition to any memoranda of law were reviewed in preparing this Decision and Order:
Defendant Nassau's Notice of Motion, Affirmation & Exhibits...........................1
Defendant Farmingdale's Affirmation in Opposition & Exhibits....................2
Defendant Anderson & Goodyear's Notice of Motion, Affirmation & Exhibits........3.
Plaintiff's Affirmations in Opposition & Exhibits....................................... 4
Defendant Farmingdale's Affirmation in Opposition & Exhibits..........................5
Defendant Farmingdale's Notice of Motion, Affirmation & Exhibits.............6
Defendant Anderson & Goodyear's Affirmation in Opposition............................7
Defendant Nassau's Reply Affirmation............................................8
Defendant Anderson & Goodyear's Reply Affirmation................9
Defendant Farmingdale's Reply Affirmation...........................10
Plaintiff alleges that in August 2017, she suffered personal injuries after she tripped over a metal protrusion from a sidewalk located adjacent to premises occupied by defendant AA Tire & Service Inc. and owned by defendant Chris Anderson LLC, in the Village of Farmingdale, County of Nassau. Plaintiff asserts that the metal object is the remnant of a traffic signpost, and that is not disputed by any of the parties. All defendants now move for summary judgment dismissing the action. For the reasons set forth below, the motions of the County and the Village are granted and the motion Of Chris Anderson and AA Tire is denied.
On a motion for summary judgment the proponent must tender sufficient evidence to demonstrate the absence of any material issues of fact in order to set forth a prima facie showing that it is entitled to judgment as a matter of law. Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81 (2003). Where the movant fails to meet its initial burden the motion for summary judgment should be denied. U.S. Bank NA. v. Weinman, 123 A.D.3d 1108 (2d Dept. 2014).
Once a movant has shown a prima facie right: to summary judgment, the burden shifts to the opposing party to show that a factual dispute exists requiring a trial, and such facts presented by the opposing party must be presented by evidentiary proof in admissible form. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Friends of Animals, Inc. v. Associated Fur Mfgrs., Inc., 46 N.Y.2d 1065 (1979); Werner v. Nelkin, 206 A.D.2d 422 (2d Dept. 1994), Nassau County's Motion (Motion Sea. No 4)
The plaintiff states that she does not oppose Nassau County's motion and, as a result; it is granted and the action is dismissed as against the County.[1]
Motion of Chris Anderson LLC and AA Tire (Motion Sea. No. 5)
As a general rule, a landowner will not be liable to a pedestrian injured by a defect in a public sidewalk abutting the landowner's premises unless "the landowner created the defective condition or caused the defect to occur because of some special use...." Block v. Potter, 204 A.D.2d 672: (2d Dept. 1994), quoting Surowiec v. City of New york, 139 A.D.2d 727 (2d Dept. 1988); see also Maya v. Town of Hempstead, 127 A-D.3d 1146 (2d Dept. 2015).
Liability may also be imposed if the landowner violated a statute or an ordinance placing upon the owner or lessee the obligation to maintain the sidewalk. Lowenthal v. Theodore H. Heidrich Realty Corp., 304 AD.2d725 (2d Dept. 2003); see also Hausser v. Giunta, 88 N.Y.2d 449 (1996). However, "[i]n order for a statute, ordinance, or municipal charter to impose liability upon an abutting owner for injuries caused by its negligence, the language thereof must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he or she will be liable to those who are injured." Picone v. Schlaich, 245 A.D.2d 555, 556 (2d Dept. 1997); see also Balder v. Incorporated Vil of Rockville Ctr., 116 A.D.3d 908 (2d Dept. 2014) (); Romano v. Leger, 72 A.D.3d 1059 (2d Dept. 2010) ().
Here, it is undisputed that the Village has a statute (Village Code §485-5) requiring landowners and occupants to maintain and keep in safe condition adjoining sidewalks. That: statute also imposes liability upon landowners and occupants: to injured parties for the failure to properly maintain a sidewalk. That liability, however, does not extend to the failure to remove remnants of signposts because a landowner has no authority or duty to remove such stumps in a sidewalk. See Kelley v. Incorporated Village of Hempstead, 138 A.D.3d 934 (2d Dept. 2016); Smith v. 125th Street Gateway Ventures, LLC, 75 A.D.3d 425 (1st Dept. 2010).
Nonetheless, although Chris Anderson and AA Tire may not have had a duty to remove the signpost stump, they remained responsible for maintaining the sidewalk around the stump. O'Connor v. Tishman Construction Corp., 182 A.D.3d 502 (1st Dept. 2020); Bronfman v. East Midtown Plaza Housing Co., Inc., 151 A.D, 3d 639 (1st Dept. 2017). An issue of fact exists as to whether the immediate area around the sign was overgrown with weeds thus creating a trap for the unwary and resulting in plaintiffs fall. It cannot be said as a matter of law that the condition of the sidewalk surrounding the stump was not the proximate cause of plaintiff s accident. See Turturro v. City of New York, 28 N.Y, 3d 469, 483 (2016)(proximate cause is generally an issue for the trier of fact given the unique nature of the inquiry in each case). As a result, the motion of Chris Anderson and AA Tire is denied.
Village of Farmingdale's Motion (Motion So. No. 6)
The Village argues that it is entitled to summary judgment because it never received prior written notice of the claimed sidewalk defect and did not create the defect at issue. Where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained roadway unless either It has received prior written notice of the defect or an exception to the prior written notice requirement applies. Griesbeck v. County of Suffolk, 44 A.D.3d 618, 619 (2d Dept. 2007). There are two exceptions to the prior written notice rule. Prior written notice is not required where (1) a municipality created the defect through its own act of negligence; or (2) a special benefit was conferred through its special use of the area. Seegers v. Village of Mineola, 161 A.D.3d 910 (2d Dept. 2018).
It is undisputed that a prior...
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