Mendes v. Whitney-Floral Realty Corp.

• Decision Date: 26 June 1995
• Docket Number: WHITNEY-FLORAL
• Parties: Carmen MENDES, Respondent, v.REALTY CORP., et al., Defendants, Incorporated Village of Floral Park, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 63

629 N.Y.S.2d 63

216 A.D.2d 540

Carmen MENDES, Respondent, v. WHITNEY-FLORAL REALTY CORP., et al., Defendants Incorporated Village of Floral Park, Appellant.

Supreme Court, Appellate Division Second Department.

June 26, 1995.

Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Marijane McQueeney, of counsel), for appellant.

Sanders, Sanders & Block, P.C., Mineola (Martin Block, of counsel; Tammy A. Trees, on the brief), for respondent.

Before BRACKEN, J.P., and ROSENBLATT, RITTER and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the defendant Incorporated Village of Floral Park appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Segal, J.), dated February 18, 1994, as denied its motion for summary judgment dismissing the complaint insofar as it is asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the defendant's motion for summary judgment is granted, and the complaint is dismissed insofar as it is asserted against the Incorporated Village of Floral Park.

The Village Code of the Village of Floral Park § 6-628 (hereinafter Village Code) states that "[n]o civil action shall be brought or maintained against [the village] for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk, [or] crosswalk * * * being defective [or] out of repair * * * unless written notice of the existence of such condition * * * had, prior to the happening of the event * * * actually been served upon the Village Clerk".

In support of its motion for summary judgment, the defendant Incorporated Village of Floral Park (hereinafter the Village) produced competent evidence to establish that it had not received "any written complaints pertaining to any condition of disrepair or defective condition in the Village parking lot located between Whitney Avenue and Tyson Avenue in Floral Park [the location of the plaintiff's accident] prior to December 26, 1990", the date of the plaintiff's accident. In opposition, the plaintiff attempted to create an issue of fact as to whether the Village had created the defect which allegedly caused her injuries by submitting the affidavit of a professional engineer who expressed the opinion, based on his inspection of the parking lot in question, that the alleged defect "exists because of the improper subsoil condition which had existed from the time the parking lot was installed". The Supreme Court denied the Village's motion. We reverse. On appeal the plaintiff argues that Village Code § 6-628 does not apply to the facts of this case because the parking lot where she was injured was not a highway under the statute.

We have previously held that the term highway, as it is commonly used in local laws and ordinances such as the one now under review, is broad enough to encompass within its scope those paved surfaces open to public automobile traffic which could more precisely be defined as parking lots (see, ...