Rosenthal v. Village of Quogue

• Decision Date: 27 June 1994
• Citation: 613 N.Y.S.2d 684,205 A.D.2d 745
• Parties: Gregory ROSENTHAL, et al., Respondents, v. VILLAGE OF QUOGUE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 684

613 N.Y.S.2d 684

205 A.D.2d 745

Gregory ROSENTHAL, et al., Respondents, v. VILLAGE OF QUOGUE, Appellant.

Supreme Court, Appellate Division Second Department.

June 27, 1994.

Devitt & Spellman, Smithtown (Christine Malafi, on the brief), for appellant.

Before COPERTINO, J.P., and SANTUCCI, FRIEDMANN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendant Village of Quogue appeals from so much of an order of the Supreme Court, Suffolk County (Luciano, J.), dated June 19, 1992, as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the defendant's motion is granted, the complaint is dismissed, and the matter is remitted to the Supreme Court, Suffolk County, for entry of an appropriate judgment.

The infant plaintiff sustained injuries when he fell from a bicycle while riding in the asphalt parking lot at the village beach in Quogue. The plaintiffs commenced this action against the Village, alleging that the accident resulted from a defect in the pavement surface. The Village moved to dismiss the complaint on the basis that it had not received written notice of the alleged defect (see, Village Law § 6-628). The plaintiffs opposed the motion, by providing evidence to support their claim that the defect was affirmatively created by the Village, such that prior notice was not a prerequisite of the action (see, Humes v. Town of Hempstead, 166 A.D.2d 503, 560 N.Y.S.2d 785). The Supreme Court denied the defendant's motion, concluding that the plaintiffs had sufficiently alleged that the accident was caused by a condition which was affirmatively created by the Village.

At the outset, we note that, although the Supreme Court treated the motion as one to dismiss for failure to state a cause of action, the plaintiffs responded to the motion, which was made subsequent to the plaintiffs' filing of a note of issue, as one for summary judgment. In addition, the plaintiffs submitted evidence to support their allegation that the Village affirmatively created the defect. We therefore treat the Village's motion as one for summary judgment (see, M.W. Zack Metal Co. v. International Nav. Corp. of Monrovia, 67 N.Y.2d 892, 895, 501 N.Y.S.2d 803, 492 N.E.2d 1219).

In opposition to the Village's motion, the plaintiffs submitted, inter alia, the transcript of a hearing pursuant to General Municipal Law § 50-h, at which the infant plaintiff was unable to either recall the place in the parking lot at which the accident occurred, or to describe the condition of the pavement in any detail. Moreover, the affidavit by the infant's father, wherein the father alleges that the accident was caused by a defect created by the Village, is without evidentiary value, inasmuch as the father was not present at the time and had no personal knowledge of the location of the accident (see, CPLR 3212[b]. Because the plaintiffs provided no competent evidence that the Village affirmatively created the defect which caused the accident, the Village's motion should have been granted (see, Zawacki v. Town of N. Hempstead, 184 A.D.2d 697, 585 N.Y.S.2d 93; Kaempf v. Town of Hempstead, 170 A.D.2d 652, 567 N.Y.S.2d 76).

COPERTINO, J.P., and SANTUCCI and GOLDSTEIN, JJ., concur.

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