Gutierrez v. Cohen
| Decision Date | 13 May 1996 |
| Citation | 643 N.Y.S.2d 121,227 A.D.2d 447 |
| Parties | Jose GUTIERREZ, Respondent, v. David COHEN, et al., Defendants, Town of Islip, Appellant (and other actions). |
| Court | New York Supreme Court — Appellate Division |
Robert J. Passarelli, Babylon (Andrew J. Fiore, of counsel), for appellant.
Wallace & Witty, P.C., Bay Shore (Jason F. Zimmerman, of counsel), for respondent.
Before SANTUCCI, J.P., and ALTMAN, KRAUSMAN and GOLDSTEIN, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the defendant Town of Islip appeals from an order of the Supreme Court, Suffolk County (Oshrin, J.), dated January 31, 1995, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Town of Islip, and the action against the remaining defendants is severed.
The plaintiff commenced this action to recover damages for injuries he sustained when he allegedly fell over a piece of metal that once housed a traffic sign which protruded from the ground above a sidewalk located approximately 50 feet southeast of the entrance to 21 Pineaire Drive, Bay Shore, New York. The Town of Islip (hereinafter the Town) moved for summary judgment based upon the plaintiff's failure to comply with the prior written notice requirements of Town Law § 65-a and Islip Town Code § 47A-3. The plaintiff countered that no prior written notice was required since the Town itself affirmatively created the condition as evidenced through an admission by the Town's agent that work orders indicated that a sign was installed. The plaintiff also annexed two photographs which purportedly depicted the existence of a signpost as well as a signpost remnant protruding from the ground at the spot where he claimed he had fallen. The Supreme Court denied the motion finding that the photographs, along with the Town's admission, created a question of fact regarding whether the Town created the defect. We now reverse.
In the absence of prior written notice, the plaintiff was required to demonstrate that the Town caused or created the condition in order to defeat the Town's motion for summary judgment (see, Monteleone v. Incorporated Vil. of Floral Park, 143 A.D.2d 647, 648, 532 N.Y.S.2d 874; Radicello v. Village of Spring Val., 115 A.D.2d 466, 495 N.Y.S.2d 702). If an opponent is to...
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Attwood v. The Cnty. of Westchester
...of depressed asphalt submitted by plaintiff to show that the city created the defect, are not admissible evidence); Gutierrez v. Cohen, 227 A.D.2d 447, 643 N.Y.S.2d 121, 122 (2d Dep't 1996)(same); Charlip v. City of New York, 249 A.D.2d 432, 671 N.Y.S.2d 502 (2d Dep't 1998)(unauthenticated ......
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Attwood v. The Cnty. of Westchester
...of depressed asphalt submitted by plaintiff to show that the city created the defect, are not admissible evidence); Gutierrez v. Cohen, 227 A.D.2d 447, 643 N.Y.S.2d 121, 122 (2d Dep't 1996)(same); Charlip v. City of New York, 249 A.D.2d 432, 671 N.Y.S.2d 502 (2d Dep't 1998)(unauthenticated ......
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Goldstein v. Vill. of Farmingdale
...Village did not receive prior written notice of the alleged defect the Village is entitled to summary judgment. See Gutierrez v.. Cohen, 227 A.D.2d 447 (2d Dept. 1996). Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of the court. 6 ......
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Goldstein v. Vill. of Farmingdale
...Village did not receive prior written notice of the alleged defect the Village is entitled to summary judgment. See Gutierrez v.. Cohen, 227 A.D.2d 447 (2d Dept. 1996). Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of the court. 6 ......