Loughlin v. Town of Hempstead, 2009 NY Slip Op 33005(U) (N.Y. Sup. Ct. 12/9/2009)

• Decision Date: 09 December 2009
• Docket Number: 19841/07,Motion Sequence No. 001
• Citation: Loughlin v. Town of Hempstead, 2009 NY Slip Op 33005(U) (N.Y. Sup. Ct. 12/9/2009), 2009 NY Slip Op 33005, 19841/07, Motion Sequence No. 001 (N.Y. Sup. Ct. Dec 09, 2009)
• Parties: MARY LOUGHLIN, Plaintiff, v. TOWN OF HEMPSTEAD, Defendant.
• Court: New York Supreme Court

Page 1

2009 NY Slip Op 33005(U)

MARY LOUGHLIN, Plaintiff, v.TOWN OF HEMPSTEAD, Defendant.

19841/07

Motion Sequence No. 001

Supreme Court, Nassau County

December 9, 2009

ANTONIO I. BRANDVEEN, Judge

The defendantTown of North Hempstead moves pursuant to CPLR 3212 for summary judgment, and dismissal of the complaint and all cross claims upon the ground the Town of North Hempstead did not receive prior written notice of the alleged defect.The plaintiff opposes the motion.

The plaintiff alleges she fell on May 30, 2007, on the sidewalk on Park Circle abutting 37 Park West, New Hyde Park, New York.The Town of North Hempstead responded with an affirmative defense asserting a lack of prior written notice to the verified complaint.On October 23, 2007, the plaintiff testified pursuant to General Municipal Law § 50-h, and testified on May 1, 2008, at an examination before trial.On May 1,2008, Nuncio Vetrano, a construction supervisor I for the Town of North Hempstead, testified at an examination before trial.On March 31, 2009, Corey Falls, a laborer employed by the Town of North Hempstead for sidewalk repair, testified at an examination before trial.

The defense attorney points, in a supporting affirmation dated July 27, 2009, to all of that testimony, and photographs of the accident site.The defense attorney contends the evidence shows the Town of North Hempstead never received prior written notice of the alleged defect.The defense attorney asserts the Code of the Town of North Hempstead§ 26-1 provides no civil action may be maintained against it for personal injuries sustained as the result of a defective highway or sidewalk unless written notice of that defect was given to the Superintendent of Highways or the Clerk of the Town of North Hempstead.The defense attorney also points out the affidavits dated July 27, 2009, July 24,2009, and July 24, 2009, respectively of Thomas P. Tiernan, the Superintendent of Highways, Leslie C. Gross, the Clerk, and Jillian Guiney, the Acting Commissioner of Public Works, indicate they did not receive prior written notice of the alleged defect.The defense attorney avers speed letters, to wit work orders to the employees of a municipality do not constitute prior written notice, as a matter of law.The defense attorney argues, since no prior written notice of a defect was received, the Town of North Hempstead has established its prima facie entitlement to summary judgment as a matter of law.The defense attorney submits there is no evidence the Town of North Hempstead created the alleged defect, to wit there is no showing of an affirmative act of negligence by the Town of North Hempstead to create a defect, rather the evidence shows there was a tree near that sidewalk, and its roots raised the sidewalk.The defense attorney states, while there is evidence of a prior repair at the subject location, that circumstance standing alone is insufficient to meet the creation exception rather there must be some evidence the work immediately resulted in the existence of a dangerous condition, and there is no such evidence here.The defense attorney states there is no evidence to indicate the Town of North Hempstead had a specific use at the premises, so there must be a municipal use or function inuring to the benefit of the Town of North Hempstead, and there is no such evidence here.

The plaintiffs attorney states, in an opposing affirmation dated August 18,2009, the Town of North Hempstead caused and created the defective and dangerous sidewalk condition through its negligent repair.The plaintiffs attorney points to the affirmation dated August 17, 2009, by Stanley Fein, the plaintiffs expert, to wit a professional engineer, who states, with reasonable engineering safety, the defendant's failures, caused and created a dangerous sidewalk area and condition, and was a substantial factor in causing the plaintiff to fall, and be injured.The plaintiffs attorney notes the defendant failed to submit a sworn statement by an expert to support the contentions of the Town of North Hempstead.The plaintiffs attorney points out the defense fails to address the plaintiffs theory of liability the cause of the defective condition and special use.

This Court has carefully reviewed and considered all of the parties' papers with respect to this motion.Under CPLR 3212(b), a motion for summary judgment"shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.""The motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."Summary judgment is a drastic remedy that is awarded only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hosp.,68 N.Y.2d 320, 325;Andre v. Pomeroy,35 N.Y.2d 361).Summary judgment is the procedural equivalent of a trial (Museums at Stony Brook v. Village of Patchogue Fire Dept.,146 A.D. 2d 572).Thus the burden falls upon the moving party to demonstrate that, on the facts, it is entitled to judgment as a matter of law (see, Whelen v. G.T.E. Sylvania Inc.,182 A.D. 2d 446).The court's role is issue finding rather than issue determination (see, e.g., Sillman v. Twentieth Century-Fox Film Corp.,3 N.Y.2d 395;Gervasio v. DiNapoli,134 A.D.2d 235, 236;Assing v. United Rubber Supply Co.,126 A.D.2d 590).Nevertheless, "the court must evaluate whether the alleged factual issues presented are genuine or unsubstantiated"(Gervasio v. DiNapoli, supra,134 A.D.2d at 236, quoting fromAssing v. United Rubber Supply Co., supra;see, Columbus Trust Co. v. Campolo,110 A.D.2d 616, aff'd66 N.Y.2d 701).If the issue claimed to exist is not genuine, and, therefore, there is nothing to be resolved at the trial, the case should be summarily decided (see, Andre v. Pomeroy,35 N.Y.2d at 364;Assing v. United Rubber Supply Co., supra).The Court finds the Town of North Hempstead met its initial burden of establishing prima facie entitlement to summary judgment based upon the evidence it presented.The burden then shifted to the plaintiff to tender evidence in admissible form sufficient to raise a question of fact requiring trial.This Court finds no triable issue of fact has been raised here.

The Court of Appeals holds:

Prior notification laws are a valid exercise of legislative authority (Fullerton v City of Schenectady,285 App Div 545, affd309 NY 701, appeal dismissed350 US 980;Holt v County of Tioga,56 NY2d 414).Such laws reflect a legislative judgment to modify the duty of care owed by a locality in order to address "the vexing problem of municipal street and sidewalk liability"(Barry v Niagara Frontier Tr. Sys.,35 NY2d 629, 633).Indeed, General Municipal Law § 50-e (4), the authorizing statutory provision, "specifically allows for the enactment of prior notification statutes and requires compliance with such laws [and] ... it must be read to apply alike to all laws enacted by any legislative body in this State"(Holt v County of Tioga, 56 NY2d, supra, at 419).Thus, in derogation of the common law, a locality may avoid liability for injuries sustained as a result of defects or hazardous conditions on its sidewalks if it has not been notified in writing of the existence of the defect or hazard at a specific location (see, Doremus v Incorporated Vil. of Lynbrook,18 NY2d 362, 366).

Amabile v. City of Buffalo, 93 N.Y.2d 471, 473-474, 693 N.Y.S.2d 77[1999].

Moreover, the Second Department holds:

The City established its entitlement to judgment as a matter of law by proffering the deposition testimony of a municipal code enforcement officer, in which he stated that he had searched the City's prior written notice logbook and had found no records indicating that the City had received prior written notice of the alleged defective sidewalk condition (seeAkcelik v. Town of Islip,38 A.D.3d 483, 484, 831 N.Y.S.2d 491;Hyland v. City of New York,32 A.D.3d 822, 823, 821 N.Y.S.2d 138;Granderson v. City of White Plains,29 A.D.3d 739, 815 N.Y.S.2d 246).In response, the plaintiff failed to raise a triable issue of fact as to whether there was such prior written notice (seeMarshall v. City of New York,52 A.D.3d 586, 861 N.Y.S.2d 77;Akcelik v. Town of Islip,38 A.D.3d at 484, 831 N.Y.S.2d 491) . . . even though the Department of Public Works generated the 2004 notice in response to a telephonic complaint, a telephonic complaint reduced to writing does not satisfy the requirement of prior written notice (seeWhite Plains Municipal Code§ 277;Akcelik v. Town of Islip,38 A.D.3d at 484, 831 N.Y.S.2d 491;Dalton v. City of Saratoga Springs,12 A.D.3d 899, 901, 784 N.Y.S.2d 702;Cenname v. Town of Smithtown,303 A.D.2d 351, 351-352, 755 N.Y.S.2d 651).

McCarthy v. City of White Plains,54 A.D.3d 828, 829-830, 863 N.Y.S.2d 500[2^nd Dept., 2008].

"[N]either actual notice (seeGranderson v. City of White Plains,29 A.D.3d at 740, 815 N.Y.S.2d 246;Cenname v. Town of Smithtown,303 A.D.2d 351, 352, 755 N.Y.S.2d 651) nor constructive notice (seeAmabile v. City of Buffalo,93 N.Y.2d 471, 475-476, 693 N.Y.S.2d 77, 715 N.E.2d 104) obviate the need to comply with the prior written notice statute"(McCarthy v. City of White Plains,54 A.D.3d 828, supra,...