Weinstein v. Town of Hempstead, 9640/12.

• Court: United States State Supreme Court (New York)
• Writing for the Court: JEFFREY S. BROWN, J.
• Citation: 36 N.Y.S.3d 50 (Table)
• Parties: Carol WEINSTEIN and Gil Weinstein, Plaintiff(s), v. The TOWN OF HEMPSTEAD and Top–It 1111, LLC, Defendant(s).
• Docket Number: No. 9640/12.,9640/12.
• Decision Date: 14 January 2016

36 N.Y.S.3d 50 (Table)

Carol WEINSTEIN and Gil Weinstein, Plaintiff(s),
v.
The TOWN OF HEMPSTEAD and Top–It 1111, LLC, Defendant(s).

No. 9640/12.

Supreme Court, Nassau County, New York.

Jan. 14, 2016.

Friedman Friedman Chiaravalotti & Giannini, Esqs., New York, NY, Attorney for Plaintiff.

Joseph Ra, Esq., Town Attorney, Hempstead, NY, Attorney for Defendant TOH.

Paganini Cioci Pinter Cusumano & Farole, Esqs., Melville, NY, Attorneys for Defendant Top–It.

D'Amato & Lynch, LLP, New York, NY, Attorneys for Defendant Robustello.

JEFFREY S. BROWN, J.

The following papers were read on this motion:Papers Numbered

MS 2MS 3

Notice of Motion, Affidavits (Affirmations), Exhibits Annexed	14
Answering Affidavit	25
Reply Affidavit	36

Defendant Top–It 1111, LLC (Top–It) moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint and any cross-claims asserted by the co-defendant against it. Defendant Town of Hempstead (Town) cross-moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint.

In this personal injury plaintiff alleged to have tripped and fallen as a result of a crack on a sidewalk in Hewlett, New York. This action was commenced on July 30, 2012. Issue was joined by both Top–It on October 24, 2012 and the Town on October 24, 2012. In support of Top–It's motion are the deposition transcripts of the plaintiff Carol Weinstein, defendant Town, defendant Top–It, and an affidavit from Jeanmaire Waters, a principal of Top–It.

Plaintiff Carol Weinstein testified in her deposition that on May 11, 2011, she parked her car in a small parking lot across the street from the Aqua Beauty Salon. She stepped out of her car into the parking lot. She walked about twelve steps until she came to the sidewalk. She took one step onto the sidewalk and caught her shoe in a crack causing her to fall. She testified that she fell on the “apron” of the driveway where cars came into and left the lot.

Andrew Brust, a Town highway inspector testified on behalf of the Town. Prior to his position as highway inpector, he was employed by the Town as a sidewalk inspector. He would inspect sidewalks in response to notices of claim, written letters of complaint or a tree removal by the department of engineering. He reviewed paperwork which indicated to him that a search was done and there was no prior notice for a period of five years. He did not know who did the search, nor was there any indication whether there was a sidewalk inspection at the location. Andrew Brust has no recollection of visiting the location in question. He reviewed a photograph shown to him, and it appeared that a portion of the parking lot is a Town parking lot. Further, if the sidewalk is abutting the Town parking lot, the Town would have the responsibility for the maintenance of the sidewalk.

Jeanmaire Waters is the managing member of Top–It. Top–It is the owner of a building consisting of commercial stores. Behind these stores is a parking lot for tenant parking. Top–It's parking lot was behind the Town Parking lot. In order to get into the Top–It parking lot, a vehicle had to pass through the Town lot. In order to get into the Town lot a vehicle had to cross the curb cut from Franklin Avenue displayed in the photograph.

Jeanmaire Waters also submitted an affidavit wherein she stated that she is a principal of Top–It which owned a building at 1206–1212 Broadway in Hewlett. There was a small parking lot behind the building which was accessed through a parking lot owned by the Town. She states that Top–It did not make special use of the sidewalk where the accident occurred. Nor did Top–It, or any of its agents, damage, repair, maintain, clear snow or sweep the sidewalk in question. Further, its agents did not create the defect where plaintiff was alleged to have fallen.

In support of the Town's motion, the affidavit of Sheila Dauscher, a Record Access Officer of the Town highway department was submitted. She is familiar with the roadways under the jurisdiction of the Town and records maintained by the highway department. It appears that plaintiff fell on the curb cut portion of the sidewalk on Franklin Street, north of the north-east corner of the intersection with Franklin Street and Broadway in the parking lot identified as H–11 in Hewlett, New York.

A personal search of records of written complaints and notices of roadway conditions of the highway department was conducted. She also reviewed the notices of claims or written notices regarding roadway accidents or conditions received by the Office of the Town Clerk. Such search revealed no written complaints or noticesof claim regarding the subject location for a period of three years prior to May 11, 2011. Nor did the records reveal any repair records indicating that the Town Highway Department performed any repairs at the subject location or contract with any municipality or contractor to maintain, repair or perform construction work to the subject location for a period of three years prior to May 11, 2011.

In opposition to Top–It's motion, counsel for plaintiff argues that Top–It's tenants and principal made use of the driveway in question where the alleged defect was and as a result, such use is a “special use.” Further, in opposition to the Town's motion, counsel argues that the private interests of the abutting landowner creates a special benefit for said landowner and as a result, an exception is created allowing plaintiff to maintain her action against both defendants.

Also submitted by plaintiff is an affidavit from Stanley Fein, P.E. a licensed professional engineer. He reviewed the...