Seelinger v. Town of Middletown

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: EGAN JR
• Citation: Seelinger v. Town of Middletown, 913 N.Y.S.2d 376, 79 A.D.3d 1227 (N.Y. App. Div. 2010)
• Decision Date: 02 December 2010
• Parties: Charles SEELINGER et al., Appellants, v. TOWN OF MIDDLETOWN, Respondent.

913 N.Y.S.2d 376

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). Sincedefendant asserts that it received no prior written notice of a defective condition at the site of plaintiff's fall, and plaintiff does not allege that he gave such notice, the operative question becomes whether defendant's waste transfer station falls within the category of locations envisioned by Town Law § 65-a.

The prior written notice requirement of Town Law § 65-a extends not only to those named sites, but also to "any site that shares the same 'functional purpose' as the types of areas explicitly enumerated" ( Smith v. Village of Hancock, 25 A.D.3d at 976, 809 N.Y.S.2d 589). Defendant argued, and Supreme Court accepted, that the waste transfer site was a parking lot that, in turn, was a highway within the meaning of Town Law § 65-a.

While we agree that it is well established that a municipal parking lot may be considered a "highway" for the purposes of General Municipal Law § 50-e ( see Smith v. Village of Hancock, 25 A.D.3d at 976, 809 N.Y.S.2d 589; Lauria v. City of New Rochelle, 225 A.D.2d 1013, 1014, 639 N.Y.S.2d 867 [1996] ), whether a given municipal property is a parking lot in the first place will depend on a fact-based inquiry into its individual characteristics ( see generally Smith v. Village of Hancock, 25 A.D.3d at 976-977, 809 N.Y.S.2d 589; Staudinger v. Village of Granville, 304 A.D.2d 929, 929-930, 758 N.Y.S.2d 415 [2003] ). The affidavit of the Town Clerk submitted in support of defendant's motion simply confirmed that no prior written notice of a defective condition had been received by his office for this site, and no other affidavit or proof was submitted by defendant concerning the physical layout or characteristics of the site to allow Supreme Court to properly determine whether it functionally served the same purpose as a parking lot. Accordingly, we find that Supreme Court erred in finding, as a matter of law, that the transfer station where plaintiff fell was itself a parking lot.

We further find that Supreme Court erred in granting defendant's motion for summary judgment based on plaintiff's inability to identify the cause of his fall. Although "[m]ere conclusions based upon surmise, conjecture, speculation or assertions are without probative value" ( Maiorano v. Price Chopper Operating Co., 221 A.D.2d 698, 699, 633 N.Y.S.2d 413 [1995]; see Smith v. J.H.B., Inc., 300 A.D.2d 874, 875, 752 N.Y.S.2d 134 [2002]; Dapp v. Larson, 240 A.D.2d 918, 919, 659 N.Y.S.2d 130 [1997] ), a case of negligence based wholly on circumstantial evidence may be...