Hill v. Fence Man, Inc.

• Decision Date: 23 November 2010
• Citation: 912 N.Y.S.2d 93,78 A.D.3d 1002
• Parties: Stacey Ann HILL, et al., respondents, v. FENCE MAN, INC., respondent-appellant, Town of Huntington, et al., appellants-respondents.
• Court: New York Supreme Court — Appellate Division

912 N.Y.S.2d 93 78 A.D.3d 1002 Stacey Ann HILL, et al., respondents, v. FENCE MAN, INC., respondent-appellant, Town of Huntington, et al., appellants-respondents. Supreme Court, Appellate Division, Second Department, New York. Nov. 23, 2010.

Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., and Patricia D'Alvia of counsel), for appellants-respondents.

McLaughlin & Stern, LLP, New York, N.Y. (Paul H. Levinson of counsel), for respondent-appellant.

Galasso, Langione, Catterson & LoFrumento, LLP, Garden City, N.Y. (James R. Langione of counsel), for respondents.

PETER B. SKELOS, J.P., RANDALL T. ENG, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ.

In an action to recover damages for personal injuries, etc., the defendants Town of Huntington and Town of Huntington Highway Department appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Suffolk County (Pines, J.), entered December 22, 2008, as denied that branch of their cross motion which was for summary judgment dismissing the complaint insofar as asserted against them and (2) so much of an order of the same court dated July 22, 2009, as denied that branch of their motion which was denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue that branch of their prior cross motion which was forsummary judgment dismissing the complaint insofar as asserted against them, and the defendant Fence Man, Inc., cross-appeals, as limited by its brief, from so much of the order dated July 22, 2009, as granted that branch of the motion of the defendants Town of Huntington and Town of Huntington Highway Department which was denominated as one for leave to renew and reargue, but which was, in actuality one for leave to reargue their opposition to its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and, upon reargument, vacated the determination in the order entered December 22, 2008, granting its motion, and thereupon denied its motion.

ORDERED that the order entered December 22, 2008, is affirmed insofar as appealed from; and it is further,

ORDERED that the appeal from the order dated July 22, 2009, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated July 22, 2009, is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs, payable by the defendants Town of Huntington and Town of Huntington Highway Department, and one bill of costs is awarded to the defendants Town of Huntington and Town of Huntington Highway Department, payable by the defendant Fence Man, Inc.

On April 28, 2006, the injured plaintiff, Stacey Ann Hill, allegedly slipped and fell on a strip of white, reflective paint, constituting the stop line at the intersection of Dickinson Avenue and Dawn Drive in East Northport. The stop line had been painted on the day prior to the accident by the defendant Fence Man, Inc. (hereinafter Fence Man), a contractor hired by the defendants Town of Huntington and Town of Huntington Highway Department (hereinafter together the Town) for various pavementmarking projects. The plaintiffs commenced this action against both the Town and Fence Man, alleging negligence in the painting of the stop line. Fence Man moved and the Town cross-moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court, in an order entered December 22, 2008, granted Fence Man's motion, but denied the Town's cross motion. In an order dated July 22, 2009, the Supreme Court denied that branch of the Town's motion, denominated as one for leave to renew and reargue, but which was, in actuality, for leave to reargue that branch of the Town's prior cross motion which was for summary judgment dismissing the complaint insofar as asserted against it. In the same order, the Supreme Court granted the Town leave to reargue its opposition to Fence Man's prior motion, and thereupon denied that branch of Fence Man's motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Town appeals from the order entered December 22, 2008. The Town appeals, and Fence Man cross-appeals, from the portions of the order made upon reargument that were adverse to each of them, respectively.

The Town conclusively established that no prior written notice of the alleged dangerous condition was ever provided to it, as required by local law ( see Town Code of Town of Huntington § 174-3[A]; § 174-5; Yarborough v. City of New York, 10 N.Y.3d 726, 727, 853 N.Y.S.2d 261, 882 N.E.2d 873; Kiszenik v. Town of Huntington, 70 A.D.3d 1007, 895 N.Y.S.2d 208). However, the Town failed to meet its burden of establishing its prima facie entitlementto judgment as a matter of law because its submissions failed to eliminate all triable issues of fact as to whether Fence Man, as its agent, caused or...