Stewart v. Town of Hempstead

• Citation: 2022 NY Slip Op 31692 (U)
• Decision Date: 10 February 2022
• Docket Number: Index No. 608227/2019,Motion Sequence No. 002,003,004,005
• Parties: KATHERINE STEWART and JOHN STEWART, Plaintiff(s), v. TOWN OF HEMPSTEAD, THE COUNTY OF NASSAU, SUZANNE GIMPEL, and NICOLETTA GRABISCH, Defendant(s).
• Court: United States State Supreme Court (New York)

2022 NY Slip Op 31692(U)

KATHERINE STEWART and JOHN STEWART, Plaintiff(s),
v.
TOWN OF HEMPSTEAD, THE COUNTY OF NASSAU, SUZANNE GIMPEL, and NICOLETTA GRABISCH, Defendant(s).

Index No. 608227/2019, Motion Sequence No. 002, 003, 004, 005

Supreme Court, Nassau County

February 10, 2022

Unpublished Opinion

Submitted: 11/19/2021

PRESENT: Hon. Thomas Rademaker, J.S.C.

Hon. Thomas Rademaker, J.S.C.

UPON DUE DELIBERATION AND CONSIDERATION BY THECOURT of the foregoing papers, including e-filed documents/exhibits numbered 44 through and including 210, motion sequences 002, 003, 004, and 005 are decided as follows:

The defendants, through separate motions, move pursuant to CPLR §3212, for orders which seek, inter alia, dismissal of the Plaintiffs' complaint and all cross-claims. The Plaintiff opposes all four of the defendants' summary judgment motions.

The Plaintiffs commenced this action to recover damages for injuries from an alleged trip and fall incident which occurred on March 9, 2019, at approximately 1:30 p.m. on the sidewalk adjacent to the sides of the premises known at 2918 Davis Street, Oceanside, New York (Owned by

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Defendant GIMPEL) and: 2921 Stevens Street, Oceanside, New York (owned by Defendant GRABISCH).

The Plaintiff KATHERTNE STEWART claims that she had tripped on the portion of the sidewalk where cars turn into a garage, and contends that the Defendant GIMPEL's use of the use of the driveway on a daily basis for over fifteen years afforded not only constituted a special use of that portion of the sidewalk, but afforded the Defendant GIMBEL with an opportunity to observe the alleged sidewalk defect involved in this accident

The Plaintiffs further contend that a curb tree planted in the grass area between the subject sidewalk and the curb, which had been on the property of defendant GRABISCH, is a concurrent: contributing cause of the complained of sidewalk defect, through the uprooting of the sidewalk. The Defendant GRABISCH, the owner of 2921 Stevens Street, does not reside at:that property, but testified at her deposition that she observed the property on a monthly basis to ensure that there are no issues with her tenants.

The affidavit of the Plaintiff's; consulting engineer provides that the defective sidewalk condition had been in existence on the property since December of 2007, and has continued up through the date of the accident. The Plaintiffs consulting engineer affidavit further provides that the Town of Hempstead and County of Nassau's designated witnesses submitted incomplete testimonies and affidavits in that both failed perform appropriate searches with respect to the maintenance of the tree at the property owned by Defendant GRABISCH.

It is well settled that in a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of a material issue of fact (see Sillman v. Twentieth Century Fox Film Corp.,

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3 N.Y.2d 395 [1957]', Friends of Animals, Inc. v. Associates Fur Mfrs,, 46 N.Y.2d 1065 [1979]; Zuckerman v. City of New York, 49 N.Y.2d 5557 [1980]; Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]).

The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegard v. New York University Medical Center, 64 N.Y.2d 851 [1985]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v. City of New York, 49 N.Y.2d 5557 [1980]). The primary purpose of a summary judgment motion is issue finding not issue determination (Garcia v. J. C. Duggan, Inc., 180 A.D.2d570 [1st Dept. 1992]), and it should only be granted when there are no triable issues of fact (see also Andre v. Pomeroy, 35 N.Y.2d 361: [1974]).

This case presents with claims against both private landowners and municipalities. Whether a dangerous condition exists on real property so as to create liability upon the part of...