Johnson v. Braun

• Citation: 120 A.D.3d 765,991 N.Y.S.2d 351,2014 N.Y. Slip Op. 05955
• Parties: Denis JOHNSON, respondent, v. Emil BRAUN, et al., respondents-appellants, Town of East Hampton, appellant-respondent.
• Decision Date: 27 August 2014
• Court: New York Supreme Court Appellate Division

120 A.D.3d 765

991 N.Y.S.2d 351

2014 N.Y. Slip Op. 05955

Denis JOHNSON, respondent,

v. Emil BRAUN, et al., respondents-appellants,Town of East Hampton, appellant-respondent.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 27, 2014.

Zaklukiewicz, Puzo & Morrissey, LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Christine Gasser], of counsel), for appellant-respondent.

Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson of counsel), for respondents-appellants.

Goggins & Palumbo, Mattituck, N.Y. (William C. Goggins of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Town of East Hampton appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated February 19, 2013, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, and the defendants Emil Braun and Harley M. Braun cross-appeal, as limited by their brief, from so much of the same order as granted the plaintiff's cross motion for summary judgment against them on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, and the motion of the defendant Town of East Hampton for summary judgment dismissing the complaint and all cross claims insofaras asserted against it is granted; and it is further,

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

ORDERED that one bill of costs is awarded to the defendant Town of East Hampton, payable by the defendants Emil Braun and Harley M. Braun and the plaintiff Denis Johnson, appearing separately and filing separate briefs, and one bill of costs is awarded to the plaintiff Denis Johnson, payable by the defendants Emil Braun and Harley M. Braun.

On the evening of February 18, 2010, the plaintiff was a rear-seat passenger in a vehicle owned by the defendant Emil Braun and driven by his daughter, Harley M. Braun (hereinafter the driver, and hereinafter together the Braun defendants), along a roadway located in the defendant Town of East Hampton, when the driver lost control, causing the vehicle to strike a tree. The plaintiff commenced this action against the Braun defendants and the Town to recover damages for injuries he allegedly sustained. The Supreme Court denied the Town's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and granted the plaintiff's cross motion for summary judgment on the issue of liability against the Braun defendants.

The Town established its prima facie entitlement to judgment as a matter of law by demonstrating the enactment of the Town of East Hampton Code § 217–4, a prior written notice law, and submitting affidavits by the Deputy Town Clerk and its Deputy Superintendent of Highways, who stated that their search of the Town's records revealed no prior written notice of a defective condition in the roadway where the accident occurred ( see Town Law § 65–a[1]; Politis v. Town of Islip, 82 A.D.3d 1191, 1192, 920 N.Y.S.2d 185; Weinfeld v. Roth Assoc., 177 A.D.2d 977, 978, 578 N.Y.S.2d 312).

Contrary to the Supreme Court's determination, the plaintiff failed to raise a triable issue of fact as to whether an exception to the prior written notice requirement—an affirmative act of negligence by the Town in creating or exacerbating a dangerous condition—applied here ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104; Politis v. Town of Islip, 82 A.D.3d at 1192, 920 N.Y.S.2d 185). The plaintiff's opposition to the motion was premised on his theory that the driver lost control of the vehicle upon traveling over an improperly applied asphalt patch, which created a dangerous condition, rather than as a result of a black ice condition coupled with the...