Petrone v. City of Long Beach

• Decision Date: 10 May 2019
• Docket Number: Index No. 607041-15,Motion Sequence No. 004,006
• Citation: 2019 NY Slip Op 34848 (U)
• Parties: MARY ANN PETRONE, Plaintiff, v. CITY OF LONG BEACH, COUNTY OF NASSAU, RIVIERA TOWERS CORPORATION, LONG BEACH OWNERS CORP., NAILI and TOWN OF HEMPSTEAD, PAULSEN REAL ESTATE CORP., ATLANTIC PARTNERS CO., CASTLE INDUSTRIES., INC., and EAGLE PROPERTY MANAGEMENT CORP., Defendants. LONG BEACH OWNERS CORP. and BAGNATO REATLY SERVICES, LLC d/b/a/ NAI LONG ISLAND s/h/a NAILI, Third-Party Plaintiffs v. PAULSEN REAL ESTATE CORP., ATLANTIC PARTNERS CO., and CASTLE INDUSTRIES, INC., Third-Party Defendants.
• Court: New York Supreme Court

2019 NY Slip Op 34848(U)

MARY ANN PETRONE, Plaintiff,
v.
CITY OF LONG BEACH, COUNTY OF NASSAU, RIVIERA TOWERS CORPORATION, LONG BEACH OWNERS CORP., NAILI and TOWN OF HEMPSTEAD, PAULSEN REAL ESTATE CORP., ATLANTIC PARTNERS CO., CASTLE INDUSTRIES., INC., and EAGLE PROPERTY MANAGEMENT CORP., Defendants.

LONG BEACH OWNERS CORP. and BAGNATO REATLY SERVICES, LLC d/b/a/ NAI LONG ISLAND s/h/a NAILI, Third-Party Plaintiffs
v.
PAULSEN REAL ESTATE CORP., ATLANTIC PARTNERS CO., and CASTLE INDUSTRIES, INC., Third-Party Defendants.

Index No. 607041-15, Motion Sequence No. 004, 006

Supreme Court, Nassau County

May 10, 2019

Unpublished Opinion

DECISION & ORDER

HON. ROBERT A. BRUNO, J.S.C.

Papers Numbered
Sequence #004
Notice of Motion, Affirmation & Exhibits...........................................	1
Affirmation in Opposition.................................................................	2
Affirmation in Opposition...................................................................	3
Affirmation in Opposition...................................................................	4
Reply Affirmation................................................................................	5
Sequence # 006
Notice of Motion, Affirmation & Exhibits......................................	1
Affirmation in Opposition...............................................................	2
Affirmation in Opposition................................................................	3
Affirmation in Opposition...............................................................	4
Reply Affirmation............................................................................	5
Reply Affirmation............................................................................	6
Reply Affirmation............................................................................	7

1

Upon the foregoing papers, the following motions are determined as set forth below:

Sequence #004. Motion by defendant CITY OF LONG BEACH for an Order pursuant to CPLR §3212, seeking summary judgment dismissing plaintiffs Complaint and all cross-claims against CITY OF LONG BEACH.

Sequence #006. Motion by defendant/third-party defendant CASTLE INDUSTRIES, INC. for an Order pursuant to CPLR §3212 dismissing the Complaint, the Third-Party Complaint and all cross-claims against CASTLE INDUSTRIES, INC.

The following facts are taken from the parties' submissions and do not constitute findings of fact by the Court. This is an action to recover damages for personal injuries allegedly sustained in a trip and fall accident that occurred on June 13, 2015, on the sidewalk adjacent to the premises located at 600 and 630 Shore Road, Long Beach, New York. 630 Shore Road is owned by defendant PAULSEN REAL ESTATE CORP., and 600 Shore Road is owned by defendant LONG BEACH OWNERS CORP. ("LONG BEACH"). In 2008, LONG BEACH contracted with defendant CASTLE INDUSTRIES, INC. ("CASTLE") to replace the sidewalk in front of 600 Shore Road. CASTLE replaced the sidewalk up to the property line with 630 Shore Road.

Plaintiff alleges that she was caused to trip and fall as a result of two defective areas in the sidewalk. The first area was located in front of 630 Shore Road, and the second area was located at or about the property line that divides the two properties. Plaintiff claims that the defect in the first area, described as a cracked or broken sidewalk, caused her to stumble, and that the defect at the property line, described as an "incline," caused her to fall. Both defects are circled on photographs marked as exhibits and submitted with the motions.

Motion by defendant CITY OF LONG BEACH (Sequence #004).

The CITY OF LONG BEACH (the "CITY") moves to dismiss the action and all cross-claims against it on the grounds that: (1) the CITY's "tort transfer statute" [Section 256 of the Long Beach Charter] transfers both the duty to maintain sidewalks and the liability for a failure to maintain sidewalks to the adjacent property owner; and (2) the CITY's "prior written notice" law [Section 256A(1) of the Long Beach Charter] precludes liability insofar as the CITY did not receive prior written notice of the alleged sidewalk defect, and none of the recognized exceptions to the prior written notice law applies.

2

Section 256 of the Long Beach Charter provides:

"Sec. 256. Maintenance and repair of sidewalks, curbstones and gutters.

The owner or occupant of lands fronting or abutting on any street, highway, traveled road, public lane, alley or square, shall make, maintain and repair the sidewalk, curbstones and gutters adjoining his lands and shall keep such sidewalk, curbstones and gutter free and clear of and from snow, ice and all other obstructions. Such owner or occupant and each of them, shall be liable for any injury or damage by reason of omission, failure or negligence to make, maintain or repair such sidewalk, curbstone and gutter or to remove snow, ice or other obstructions therefrom, or for a violation or nonobservance of the ordinances relating to making, maintaining and repairing sidewalks, curbstones and gutters and the removal of snow, ice and other obstructions from sidewalks, curbstones and gutters."

The CITY argues that pursuant to Section 256 of the Long Beach Charter, the CITY owed no duty to maintain or repair the sidewalk, and thus it cannot be held liable for any defect resulting from the failure to do so. The Court notes that the language of the provision itself does not expressly impose sole liability upon the abutting landowner, or relieve the CITY of its duty to maintain the sidewalks. In the case law reviewed by the Court, Section 256 and similar local laws were typically invoked to impose liability on abutting landowners; the Court found no case in which such a provision was held to free the municipality from liability.

Nonetheless, as the CITY maintains, the Court of Appeals has upheld the validity of Section 256, and other such local laws. Hausser v Giunta, 88 N.Y.2d 449,454 (1996). Moreover, the Court of Appeals has interpreted this provision as effectively "transferring liability from the municipality to abutting land owners." Id. See also Shepherd v Werwaiss, 947 F.Supp. 71 (EDNY 1996). 451-452. Insofar as none of the opposing submissions addresses this issue, it is deemed conceded. Kuehne & Nagel v Baiden, 36 N.Y.2d 539 (1975); Steffan v Wilensky, 150 A.D.3d 419 (1^st Dept. 2017); Brown v George, 138 A.D.3d 466 (1^st Dept. 2016).

In any event, the Court finds that the CITY alternatively establishes its right to judgment as a matter of law based upon the absence of prior written notice. Among other things, the CITY submits: (i) the Affidavit In Support of John A. Mirando, Commissioner of Public Works of the City of Long Beach, sworn to on September 7, 2018 (Mot. Exh. I), in which Mr. Mirando avers that, according to the records of all notices of defect, which he is required by law to keep, the CITY received no written notice of any defective or uneven condition occurring at the subject location for a period of seven years prior to the accident; and (ii) the Affidavit in Support of Gregory Scott, Superintendent of Street Maintenance of the City of Long Beach, sworn to on September 13, 2018 (Mot. Exh. J), in which Mr. Scott avers that there is no record that any employee, agent or contractor of the CITY ever performed any construction or repair work on the sidewalk at the subject...