Umana v. Cnty. of Nassau, INDEX NO. 604160/2017

• Decision Date: 13 October 2017
• Docket Number: INDEX NO. 604160/2017
• Citation: 2017 NY Slip Op 33168 (U)
• Parties: MARINA UMANA, Plaintiff, v. COUNTY OF NASSAU, TOWN OF HEMPSTEAD, NEW YORK AMERICAN WATER AND AQUA SERVICES INC and NY AMERICAN WATER COMPANY INC, Defendants.
• Court: New York Supreme Court

2017 NY Slip Op 33168(U)

MARINA UMANA, Plaintiff, v. COUNTY OF NASSAU, TOWN OF HEMPSTEAD, NEW YORK AMERICAN WATERAND AQUA SERVICES INC and NY AMERICAN WATER COMPANY INC, Defendants.

INDEX NO. 604160/2017

SUPREME COURT OF THE STATE OF NEW YORK NASSAU COUNTY TRIAL/IAS PART 35

FILED: October 16, 2017

RECEIVED: October 17, 2017

October 13, 2017

NYSCEF DOC. NO. 29

SHORT FORM ORDER

PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice

Motion Seq. No.: 01

Motion Date: 07/22/17

The following papers have been read on this motion:

Papers Numbered

Notice of Motion, Affidavit and Exhibits

Affirmation in Opposition and Exhibit

Affirmation in Opposition

Reply Affirmation

Upon the foregoing papers, it is ordered that the motion is decided as follows:

Defendant County of Nassau ("Nassau") moves, pursuant to CPLR § 3211(a)(1) and (7), for an order dismissing plaintiff's Verified Complaint as against it, and any and all cross-claims as asserted against it. Plaintiff opposes the motion. Defendant New York American Water Corp. d/b/a New York American Water i/s/h/a New York American Water and Aqua Services Inc. and New York American Water Company Inc. ("Water") also opposes the motion.

The instant action was brought to recover for personal injuries allegedly sustained by plaintiff on September 27, 2016, at approximately 6:30 a.m., when she fell after stepping into a hole/depression surrounding a water cap on the roadway of Locust Avenue, directly abutting the premises of 2112 Stirrup Path, Seaford, County of Nassau, State of New York. The action was commenced by the filing of a Summons and Verified Complaint on or about May 11, 2017. See Defendant Nassau's Affidavit in Support Exhibit C.

Counsel for defendant Nassau submits, in pertinent part, that, "[p]laintiff alleges in her Complaint that on September 27, 2016, at approximately 6:30 a.m., she purportedly suffered an injury after stepping into a hole/depression surrounding a water cap in the road at Subject Location.... The Complaint further alleges that County Defendant 'negligently and carelessly maintained said roadway' by allowing (sic) hole/depression surrounding the water cap to exist. Plaintiff claims that this created an unsafe and dangerous condition, consisting of a 'trap and nuisance.'... However, liability cannot be assessed against County Defendant because it had no jurisdiction, ownership, responsibility, or control over the roadway at the Subject Location." See id.

In support of its motion, defendant Nassau submits the Affidavit of William Nimmo ("Nimmo"), a Deputy Commissioner of the Nassau County Department of Public Works. See Defendant Nassau's Affidavit in Support Exhibit B. Nimmo submits, in pertinent part, that, "I was asked to conduct an investigation by the Office of the County Attorney about this claim alleging an injury, which purportedly occurred on September 27, 2016. The Plaintiff's injury was alleged to have been caused by the defective, negligent, and hazardous condition created by a hole/depression surrounding a water cap in the road on Locust Avenue, directly abutting thepremises 2112 Stirrup Path, in Seaford, County of Nassau, State of New York. Hereinafter referred to as the 'SUBJECT LOCATION.' In response to this request from the County Attorney's Office, I attest that I personally searched the records of the Nassau County Department of Public Works, which include contracts, permits, complaints, and repair records, which are kept at department offices located at 1194 Prospect Avenue, Westbury, New York. As a result of this search as well as my personal knowledge as Deputy Commissioner of the Nassau County Department of Public Works, I attest that the SUBJECT LOCATION is not under the jurisdiction of the County of Nassau. The County of Nassau does not, (sic) own, operate, maintain, control, inspect or repair the SUBJECT LOCATION. I also found in my search of Department of Public Works' records that the COUNTY OF NASSAU did not issue any permits for the SUBJECT LOCATION , contract for any work at the SUBJECT LOCATION, nor did it make any repairs at the SUBJECT LOCATION. The COUNTY OF NASSAU was in no way involved in the excavation, repair or maintenance of the sidewalk, roadway or curb at the SUBJECT LOCATION." Id.

Counsel for defendant Nassau further argues that, "New York courts have consistently held that in order for a plaintiff to establish a prima facie case of negligence against a municipality, the plaintiff must first demonstrate the existence of a duty owed by the defendant to the plaintiff. [citation omitted].... It is respectfully submitted that Plaintiffs' (sic) action against County Defendant should be dismissed as County Defendant clearly had no jurisdiction over the alleged accident location and therefore owed no duty to Plaintiffs (sic). Furthermore, County Defendant is exempted from jurisdiction over sidewalks or roads located within Villages as provided pursuant to § 12-4.0(c) of the Nassau County Administrative Code:..."

In opposition to the motion, counsel for plaintiff argues, in pertinent part, that "[m]ovant relies on their (sic) self-serving affidavit as 'documentary evidence,' in support of their (sic) motion to dismiss under CPLR 3211(a)(1). However, the Second Department provides that: ... 'neither affidavits, deposition testimony, nor letters are considered documentary evidence' within the intendment of CPLR 3211(a)(1) [emphasis supplied]. [citations omitted]. As the affidavits in support of defendant's motion do not constitute 'documentary evidence,' within the meaning of the statute, their (sic) motion should be denied on that basis."

Counsel for plaintiff further contends that, "[i]n the case at bar, based on the face of the plaintiff's Complaint; it is clear from the Complaint that the facts support, under a liberal interpretation, (sic) negligence action. Defendant's legal arguments fail as defendant inappropriately applies the standard for summary judgment motions, rather than CPLR §3211(a)(7) motions to dismiss. As a general rule, a motion for summary judgment may not be made before issue is joined and the requirement is strictly adhered to. [citation omitted].... Since the motion to dismiss was not converted to a motion for summary judgment, the plaintiff is not required to make an evidentiary showing in support of her Complaint. [citations omitted]. Without waiving the aforesaid arguments, it is submitted that the movant has failed to dispute the County's jurisdiction over the accident site. Nassau County Administrative Code § 12-3.0(a) & (b) provides that the Board of Supervisors may adopt a county road system and may, (sic) layout, construct, reconstruct and maintain or cause to be designated as county roads such portions as they deem advisable; furthermore, it states that the Board shall file in the office of the County Clerk a description of each new highway designated as a county road, together with a map of such roads. Section 12-4.0(a) of the Nassau County Administrative Code states that 'The County shall have the sole jurisdiction over county roads laid out or designated as such pursuantto this title.' The affidavit of William Nimmo, on which movant relies, fails to set forth whether he reviewed or has any knowledge of the map of the county roads filed with the County Clerk's office, pursuant to Nassau County Administrative Code § 12-3.0(b). Therefore, his affidavit is insufficient to rebut the County's jurisdiction over the accident location. Section 12-4.0(c) of the Nassau County Administrative Code, on which movant relies is inapplicable as the section refers to sidewalks and curbs, not roadways. As the accident location was in the roadway, the section fails to establish the County's lack of jurisdiction. It is further submitted that defendant's motion to dismiss is premature, as the parties have not had a meaningful opportunity to conduct discovery. Depositions have not yet been conducted. In the case at bar, with respect to the affidavits submitted in support of defendants' (sic) motion, a witness is incompetent to testify, where his/her testimony proffers mere opinion and legal conclusion, based on facts not in evidence. [citation omitted]. Mr. Nimmo's affidavit fails to state how he conducted his search, what the time period or location of his search entailed. Furthermore, he fails to refute whether the water cap/hardware at the accident location was owned, operated or maintained by the County. Insofar as Plaintiff has not been afforded the opportunity to cross-examine defendant's witness, he is incompetent to serve as witness and his affidavit should be deemed inadmissible. Plaintiff will be severely prejudiced if not permitted to complete discovery prior to a decision on the merits of the case."

Plaintiff submits her own affidavit in opposition to the motion. See Plaintiff's Affirmation in Support Exhibit A.

Also in opposition to the motion, defendant Water argues that, "[t]he motion should be denied. Your affirmant incorporates by reference, the legal arguments and exhibits in theaffirmation in opposition of the plaintiff to the COUNTY OF NASSAU'S motion. The COUNTY OF NASSAU'S motion is premature and should be denied."

In reply to the opposition, counsel for defendant Nassau argues, "[p]laintiff and American Water erroneously argue that the County Defendant applied the standard for summary judgment. This is clearly incorrect, as a plain reading of the County defendant's moving papers make no mention of the purported standard for summary judgment. Thus, any portion of Plaintiff's moving papers making mention of such a standard should be disregarded in its entirety. Notwithstanding, Plaintiff and American Water fail to address the fact that the County has no jurisdiction over the accident situs. Plaintiff and American Water attempt to discount Mr. Nimmo's sworn affidavit without offering any substantive argument or evidence to the contrary, and completely ignore the issue of...