Affirmation
in Reply and Exhibit 3
Upon
the foregoing papers, it is ordered that the motion is
decided as follows:
Defendant
The County of Nassau ("Nassau") moves, pursuant to
CPLR § 3211(1) and (7), for an order dismissing
plaintiffs Complaint as against it, as well as any and all
cross-claims as against it, or, in the alternative, moves
pursuant to CPLR § 3211(c), for an order granting
conversion of the instant application to summary judgment and
dismissing plaintiffs Complaint as against it, as well as any
and all cross-claims as against it. Plaintiff opposes the
motion.
The
instant action was brought to recover for personal injuries
allegedly sustained by plaintiff on September 7, 2017, at
approximately 2:00 p.m., when she tripped and fell on the
street/roadway while crossing on Columbia Avenue, in between
the Orly and Banana Republic stores, located at 431 Central
Avenue, Cedarhurst, County of Nassau, State of New York.
See Defendant Nassau's Affirmation in Support
Exhibit A. The action was commenced with the filing of a
Summons and Complaint on or about December 4, 2018.
See Defendant Nassau's Affirmation in Support
Exhibit C.
In
support of the motion, counsel for defendant Nassau submits
that, "the COUNTY'S proof is founded upon
documentary evidence, which refutes Plaintiffs allegations
herein, and, conclusively establishes that the COUNTY lacked
jurisdiction over the subject location, and further, that the
COUNTY lacked prior written notice and no exceptions to the
prior written notice requirement exist."
Counsel
for defendant Nassau asserts, in pertinent part, that
"[t]he COUNTY did not owe Plaintiff a duty because the
COUNTY does not have jurisdiction over the subject location.
New York courts have consistently held that in order for a
plaintiff to establish a prima facie case of
negligence against a municipality, the plaintiff must first
demonstrate the existence of a duty owed by the defendant to
the plaintiff, [citation omitted].... It is respectfully
submitted that Plaintiffs action against the COUNTY should be
dismissed, as the COUNTY has no jurisdiction over the subject
location and therefore owed no duty to Plaintiff. The subject
location is not i along a COUNTY roadway and the COUNTY lacks
ownership or other property interest with the adjacent
properties identified in Plaintiffs notice of claim, as such
the subject location falls outside the jurisdiction of the
COUNTY, and the COUNTY owed no duty to the Plaintiff... As
seen in the [Nassau County] jurisdictional map, the subject
roadway, Central Avenue, is not a COUNTY owned roadway, and
further, there are no COUNTY owned roadways for several
blocks in all directions, at or near the subject location. As
such, the COUNTY owned (sic) no duty to the
Plaintiff herein. Further, as identified on the Nassau County
Land Record Viewer ..., the owner of the subject location is
recorded as 'KAUFMAN ETAL MYRON L'. In the instant
action, the subject location is not along a COUNTY roadway,
the COUNTY is a separate and distinct legal entity from the
owner of the adjacent real property at the subject location,
and the COUNTY has no real property interests in the subject
location, owned by 'KAUFMAN ETAL MYRON L'. As such,
through (sic) submission of irrefutable documentary
evidence, pubically (sic) available on the official
Nassau County website, kept in the normal course of business,
and through the supporting affidavit of the COUNTY'S
keeper of records, the COUNTY has established that it lacks
jurisdiction over the subject location and adjacent
surrounding roadways and the instant action should be
dismissed in its entirety against the COUNTY."
See Defendant Nassau's Affirmation in Support
Exhibits D and E.
Counsel
for defendant Nassau further submits that, "[a]ssuming
arguendo, that the COUNTY has jurisdiction over the subject
location, liability nevertheless still cannot be assessed
against the COUNTY, because the COUNTY did not have prior
written notice of the alleged condition. Plaintiffs Complaint
alleges, in sum and substance, that the COUNTY was negligent
in its ownership, leasing, operation, control or repair of
the subject location. However, as evidenced by the affidavit
of VERONICA COX, and set forth more fully below, the COUNTY
} lacked prior written notice of the purported
defect, as is required under the General Municipal Law and
the Nassau Administrative Code. The Court's attention is
respectfully directed to Nassau County Administrative
Code § 12-4(e), ...."
Defendant
Nassau submits the Affidavit of Veronica Cox
("Cox"), who works in the Bureau of Claims and
Investigations in the Office of the Nassau County Attorney.
See Defendant Nassau's Affirmation in Support
Exhibit F. Cox indicates that she conducted a search of the
Notice of Claim Files and Notice of Defect Files for the
period of six (6) yeas prior to and including September 7,
2017. With respect to the subject location, Cox found that
"there were no t records of any prior
notices of claim or prior written complaints, for a period of
six (6) years prior to and including the date of loss."
See id.
In
opposition to the motion (Seq. No. 05), counsel for plaintiff
argues, in pertinent part, that, "[defendant's
motion must be denied as a matter of law as it fails to
present documentary evidence that warrants dismissal of the
complaint under CPLR §3211(a)(1).... Here, the sole
documentary evidence that defendant, COUNTY, submit to
contend a lack of jurisdiction over the subject roadway is an
uncertified, unauthenticated roadway map.... For
several reasons, this document is insufficient to refute
Plaintiffs allegations that defendant, COUNTY, exercised some
control over the roadway. First, the map is uncertified and
the County has not submitted anything to show that it was
prepared in the normal course of business, [citations
omitted]. This is required prior to this Court deeming it
admissible evidence, [citation omitted]. Second, the COUNTY
has not offered an affidavit from any of its employees to
authenticate or interpret the map's contents. Notably,
the affidavit from County employee, Veronica Cox, ...,
neither authenticated nor interprets the contents of the
annexed map. Third, the defendant does not submit any records
to show who performed the search for the map or whether it
shows the area where the subject accident occurred. An
attorney affirmation attesting to the contents of a map that
he lacks personal knowledge about is unequivocally
insufficient to eliminate any and all issues of fact,
[citations omitted]." See Defendant
Nassau's Affirmation in Support Exhibits
D-F.
Counsel
for plaintiff also argues that, "concerning defendant,
COUNTY'S claim that it did not receive prior written
notice of the defective condition that caused Plaintiffs
accident, this contention fails to eliminate all triable
issues of fact.... Here, Defendant COUNTY raises its argument
without affording the Plaintiff the opportunity to conduct
any discovery, including a deposition from the individual
from the County who conducted the search and the
measures/efforts'utilized in obtaining any search
results. The affidavit that defendant, COUNTY, submits from
its employee, Veronica Cox, simply states in a conclusory
manner that a search was conducted and she did not find
records.... She does not show that she conducted a search for
any records showing the COUNTY previously performed repairs
to the roadway or that is inspected and produced records
about the roadway's condition. Without allowing Plaintiff
the opportunity to depose this person about her search
methods or serving discovery demands for any additional
records within the COUNTY'S possession regarding the
subject accident location, defendant's motion is
premature and must be denied, [citation omitted]. In
addition, even assuming arguendo that the COUNTY did
not receive prior written notice of a dangerous condition
existing on the roadway, it still has not eliminated all
triable issues of fact entitling it to summary judgment. The
defendant does not establish that one of the recognized
exceptions to the prior written notice rule does not
apply.... Here, defendant, COUNTY, has not submitted any
evidence to refute that its actions created the dangerous
condition on the subject roadway. Whether the COUNTY
performed work on the subject roadway prior to the accident
resulting in the defective condition remains unanswered. The
Court should not sanction this conspicuous absence from the
COUNTY'S motion. Finally, defendant, COUNTY, is not
permitted to submit additional proof or Affidavits in their
Reply papers in order to cure any deficiencies in their
moving papers, as it is
well established that a party may not rely on the proof
submitted in its reply affidavits in order to meet its burden
of proof on its motion in chief, [citations omitted]."
In
reply to the opposition, counsel for defendant Nassau
submits, in pertinent part, that, "[p]laintiff argues
that the COUNTY failed to address the issue of affirmative
creation in its initial moving papers, thereby creating an
question of fact as to the affirmative creation to the prior
written notice exception and may not cure its purportedly
defective Motion papers through the introduction of an...
