Michela v. County of Nassau
| Decision Date | 07 October 1991 |
| Citation | 574 N.Y.S.2d 965,176 A.D.2d 707 |
| Parties | Doris MICHELA, et al., Appellants, v. The COUNTY OF NASSAU, Defendant, Village of Lynbrook, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Morton Povman, P.C., Forest Hills, for appellants.
Ahmuty, Demers & McManus, Albertson (Henri A. Demers, of counsel), for respondent.
Before MANGANO, P.J., and KUNZEMAN, MILLER and COPERTINO, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Lockman, J.), dated December 1, 1989, which granted the Village of Lynbrook's motion for summary judgment.
ORDERED that the order is affirmed, with costs.
The plaintiff Doris Michela was allegedly injured when she tripped over a raised slab of sidewalk which was caused by the overgrowth of the roots of an adjacent tree. The Village of Lynbrook moved for summary judgment on the ground that it had received no prior written notice of defect, as required by Village Law § 6-628.
Michela does not allege that she complied with the prior written notice statute contained in the Village Law. However, she argues that no prior written notice was necessary because: (1) the Village created the dangerous condition by its affirmative negligence in planting the tree, and (2) the Village had actual knowledge of the defect due to "at least ten (10) repairs made to the sidewalk * * * on the same block". We disagree.
Michela has failed to put forward any evidence that the Village planted the tree in question. Conclusory allegations are insufficient to defeat a motion for summary judgment (see, Spearmon v. Times Sq. Stores Corp., 96 A.D.2d 552, 465 N.Y.S.2d 230). Moreover, assuming arguendo that the Village had planted the tree, such an act, in addition to the Village's failure to control the roots of the tree, would at most constitute nonfeasance, not affirmative negligence (see, Zizzo v. City of New York, 176 A.D.2d 722, 574 N.Y.S.2d 966 [decided herewith]; Monteleone v. Incorporated Vil. of Floral Park, 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549 N.E.2d 459).
Michela has also failed to support her allegation of 10 prior repairs on the same block. The record indicates that some repairs were made in 1979 by the County of Nassau, not the Village. In any event, a County construction inspector testified that these repairs were 100 feet south or "several hundred feet north" of the site of the accident. These areas were isolated from and...
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