Reyhanian v. Vill. of Great Neck, Index No. 611516/2019

• Court: United States State Supreme Court (New York)
• Writing for the Court: Hon. Helen Voutsinas Judge
• Citation: 2021 NY Slip Op 33649 (U)
• Parties: HOMA REYHANIAN, Plaintiff, v. VILLAGE OF GREAT NECK, Defendant.
• Docket Number: Index No. 611516/2019,Motion Sequence Nos. 001,002
• Decision Date: 05 March 2021

2021 NY Slip Op 33649(U)

HOMA REYHANIAN, Plaintiff,
v.
VILLAGE OF GREAT NECK, Defendant.

Index No. 611516/2019, Motion Sequence Nos. 001, 002

Supreme Court, Nassau County

March 5, 2021

Unpublished Opinion

Hon. Helen Voutsinas Judge

The following papers were read on these motions:

Notice of Motion, Affirmation and Affidavit in Support, Exhibits........... 1

Notice of Cross Motion, Affirmation and Affidavit in Support, Exhbits.... 2

Affirmation in Reply and In Opposition to Cross Motion..................... 3

Reply Affirmation on Cross Motion.............................................. 4

Defendant Village of Great Neck (the "Village") moves for an Order, pursuant to CPLR §3212 granting summary judgment dismissing plaintiffs complaint, upon the grounds that the Village was not provided with prior written notice of the alleged defective condition, and the Village did not affirmatively create the alleged defective condition. Plaintiff Homa Reyhanian cross moves for an Order, pursuant to CPLR §3212[f] denying defendant's motion for summary judgment to allow for the completion of pretrial discovery. The motions are decided as hereinafter provided.

This is an action for personal injuries arising out of a trip and fall alleged to have occurred on May 25, 2018 at approximately 10:00 a.m. Plaintiff alleges that she was walking in the Village of Great Neck Parking Field No. 4, when she was caused to trip and fall as the result of a hole in the pavement of the parking lot. Plaintiff asserts that the hole is located approximately 99'6" from the curb adjacent to Middle Neck Road and 32'2" from the curb in the back of the parking filed adjacent to the gate leading to Margot Place.

The Village contends that it is entitled to summary judgment because there was no prior written notice of any defective condition on the steps, and the case does not fall within either the affirmative negligence or special use exception to the prior written notice rule.

In support of its motion, the Village submits the pleadings, the affirmation of its attorney and the affidavit of Louis Massaro, the Superintendent of the Department of Public Works for the Village.

It is not disputed that the Village has a prior written notice statute. Section 485-41 of the Village Code provides that no civil action based upon a defective, unsafe, defective, dangerous or obstructive condition may be maintained against the Village unless it had prior written notice of the condition and a reasonable amount of time after written notice to remedy the condition.

1

In his affidavit in support of the Village's motion, Mr. Massaro, the Superintendent of the Department of Public Works for the Village (the "Department"), attests that he has held that position for 18 years. He states that his job and duties include maintaining records of all prior written complaints as to the condition of Village owned property, including parking lots, streets and sidewalks within the Village. Mr. Massaro confirms that Parking Field No. 4 is owned and maintained by the Village.

Mr. Massaro attests that he personally conducted a search of the prior written notice records maintained by the Village with regard to the alleged defective pavement condition at the subject location within Parking Field No. 4, and that the Village did not receive prior written notice of the alleged condition at the accident location prior to May 25, 2018. He states further that the Village did not receive prior written notice of any defective condition within Parking Field No. 4 prior to May 25, 2018.

Mr. Massaro states that his job duties and responsibilities also include maintaining records of work, maintenance and repairs undertaken by the Village on the Village's property, that he personally conducted a search of the maintenance/repair records maintained by the Village and that the Village did not undertake and/or perform any maintenance or repairs at the accident location, or in the vicinity of the accident location, in 2017 or prior to May 25, 2018, nor did the Village employ, hire, or contract with any persons or entities to perform maintenance or repairs at the accident location prior to the date of plaintiffs accident. He attests that the Village performed work in/around the accident location after May 25, 2018, on September 26, 2018, October 1, 2018 and October 3, 2018.

In opposition to the motion, plaintiff submits the affirmation of her attorney, plaintiffs affidavit, copies of several photographs of the parking lot and accident site, and a Google Maps image dated September 2016. Plaintiff argues that defendant's motion for summary judgment must be denied because it is premature, having been made before depositions have been held and discovery completed. Plaintiff also argues that triable issues of fact exist as to whether the Village's repair work created the alleged defective condition. Plaintiffs asserts that it is clear from the photographs she presented that there were different sections of pavement installed at different times, and that the hole which caused her...