Hook v. Village of Ellenville, 502956.

• Decision Date: 27 December 2007
• Docket Number: 502956.
• Citation: 849 N.Y.S.2d 318,46 A.D.3d 1318,2007 NY Slip Op 10457
• Parties: AMANDA L. HOOK, Respondent, v. VILLAGE OF ELLENVILLE, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

46 A.D.3d 1318

849 N.Y.S.2d 318

2007 NY Slip Op 10457

AMANDA L. HOOK, Respondent, v. VILLAGE OF ELLENVILLE, Appellant, et al., Defendants.

502956.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided December 27, 2007.

Appeal from an order of the Supreme Court (Bradley, J.), entered October 2, 2006 in Ulster County, which, among other things, denied the motion of defendant Village of Ellenville for summary judgment dismissing the complaint against it.

Carpinello, J.

One evening in September 2001, plaintiff was exiting a relative's residence when she injured herself by tripping and falling on a cracked and uneven sidewalk owned by defendant Village of Ellenville. She thereafter commenced this action to recover for her injuries. The principal issue on this appeal from a denial of the Village's motion for summary judgment is whether plaintiff submitted sufficient evidence to create a question of fact as to whether the Village affirmatively created this defect since the requisite prior written notice of same was admittedly not provided (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Stewart v Town of Waterford, 152 AD2d 837, 839 [1989]).^* Plaintiff attempted to prove the affirmative creation of a defective condition by the Village in two ways.

First, plaintiff argued that the area of the sidewalk where she fell was cracked and uneven because municipal vehicles had previously parked on it. In this regard, she relied on two separate affidavits of a nonparty witness who formerly resided at the subject premises. The first affidavit preceded this witness's deposition and the second followed it. In her first affidavit, this witness averred that municipal equipment was parked "on the very sidewalk" where plaintiff fell (emphasis added). Thereafter, however, she unequivocally testified at her deposition that she never saw municipal trucks or equipment on the subject sidewalk. In the second subsequent affidavit, she then "clarifies" that any municipal vehicles she may have observed during her period of residency were either within 20 feet of the subject sidewalk or parked "in front of" the premises where plaintiff fell. Even disregarding her inconsistencies on this issue, we are unpersuaded that this nonparty witness's latest affidavit raised a question of fact concerning whether the Village created the subject defect by parking any vehicle on the sidewalk.

Next, plaintiff proffered the affidavit of a licensed...