Seelinger v. Town of Middletown
| Decision Date | 02 December 2010 |
| Citation | 913 N.Y.S.2d 376,79 A.D.3d 1227 |
| Parties | Charles SEELINGER et al., Appellants, v. TOWN OF MIDDLETOWN, Respondent. |
| Court | New York Supreme Court — Appellate Division |
79 A.D.3d 1227
Charles SEELINGER et al., Appellants,
v.
TOWN OF MIDDLETOWN, Respondent.
Supreme Court, Appellate Division, Third Department, New York.
Dec. 2, 2010.
Neil H. Greenberg & Associates, P.C., Westbury (Neil H. Greenberg of counsel), for appellants.
Shantz & Belkin, Latham (M. Randolph Belkin of counsel), for respondent.
Before MERCURE, J.P., PETERS, ROSE, MALONE JR. and EGAN JR., JJ.
EGAN JR., J.
Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), entered September 9, 2009 in Delaware County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint.
Desiring to dispose of three old wall heaters, each of which weighed several hundred pounds, plaintiff Charles Seelinger (hereinafter plaintiff) and a friend loaded them into a pickup truck and drove to defendant's waste transfer station where they were directed by an employee to place them in a dumpster, which sat in a below-grade pit. After backing up to a short curb-like abutment that surrounded the pit, plaintiff and his friend slid the first heater off the back of the truck, causing it to drop into the dumpster. As plaintiff and his friend were in the process of unloading the second heater, plaintiff fell into the pit between the concrete abutment and the dumpster, sustaining injuries.
Plaintiff and his wife, derivatively, commenced this action against defendant alleging that plaintiff's injuries were caused by the negligence of defendant in maintaining the concrete abutment that surrounded the pit. Following joinder of issue, but prior to discovery, defendant moved for summary judgment dismissing the complaint contending, among other things, that it had no prior written notice of any alleged defect as required by both Town Law § 65-a and Local Law No. 1 (2004) of Town of Middletown, plaintiffs failed to raise an issue of fact as to defendant's alleged affirmative negligence, and plaintiff is unable to identify the cause of his fall. Plaintiffs thereafter cross-moved for leave to file an amended complaint. Supreme Court granted defendant's motion and denied plaintiffs' cross motion. Plaintiffs now appeal.
Turning first to the prior written notice issue, "a plaintiff may not bring a civil action against a municipality for damages as the result of an injury sustained by reason of a defective street, highway, bridge, culvert, sidewalk or crosswalk unless prior written notice of the allegedly defective condition has been given" ( Smith v. Village of Hancock, 25 A.D.3d 975, 975, 809 N.Y.S.2d 589 [2006]; see General Municipal Law § 50-e [4]; Town Law § 65-a). Since
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