Opinion
2014-02888, 2014-05230, Index No. 602079/12.
09-30-2015
Petar BACHVAROV, respondent-appellant, v. LAWRENCE UNION FREE SCHOOL DISTRICT, appellant, County of Nassau, respondent.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellant. Harry I. Katz, P.C. (Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. [Jonathan A. Dachs ], of counsel), for respondent-appellant. Carnell T. Foskey, County Attorney, Mineola, N.Y. (Stacey L. Aaron of counsel), for respondent.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Kathleen D. Foley of counsel), for appellant.
Harry I. Katz, P.C. (Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. [Jonathan A. Dachs ], of counsel), for respondent-appellant.
Carnell T. Foskey, County Attorney, Mineola, N.Y. (Stacey L. Aaron of counsel), for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and BETSY BARROS, JJ.
Opinion In an action to recover damages for personal injuries, (1) the defendant Lawrence Union Free School District appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Galasso, J.), dated January 16, 2014, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as granted the motion of the defendant County of Nassau for summary judgment dismissing the complaint insofar as asserted against it and denied his cross motion for summary judgment against the defendant County of Nassau on the issue of prior written notice of the alleged defective condition, and (2) the defendant Lawrence Union Free School District appeals, as limited by its brief, from so much of an order of the same court dated April 14, 2014, as, upon reargument, adhered to its original determination in the order dated January 16, 2014, denying its motion for summary judgment dismissing the complaint insofar as asserted against it, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order dated April 14, 2014, as, upon reargument, adhered to the original determinations in the order dated January 16, 2014, granting the motion of the defendant County of Nassau for summary judgment dismissing the complaint insofar as asserted against it and denying his cross motion for summary judgment against the defendant County of Nassau on the issue of prior written notice of the alleged defective condition.
ORDERED that the appeal and the cross appeal from the order dated January 16, 2014, are dismissed, as that order was superseded by the order dated April 14, 2014, made upon reargument; and it is further,
ORDERED that the order dated April 14, 2014, is reversed insofar as appealed from, on the law, and, upon reargument, the determination in the order dated January 16, 2014, denying the motion of the defendant Lawrence Union Free School District for summary judgment dismissing the complaint insofar as asserted against it is vacated, and thereupon, the motion the defendant Lawrence Union Free School District for summary judgment is granted; and it is further,
ORDERED that the order dated April 14, 2014, is affirmed insofar as cross-appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The plaintiff allegedly sustained personal injuries when she tripped and fell over a defect in a sidewalk abutting a premises owned by the defendant Lawrence Union Free School District (hereinafter the School District) in the defendant County of Nassau (hereinafter together the defendants). The plaintiff commenced this action against the defendants, and the defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The plaintiff cross-moved for summary judgment on the issue of prior written notice of the alleged defective condition insofar as asserted against the County. In the order appealed from dated January 16, 2014, the Supreme Court granted the County's motion for summary judgment dismissing the complaint insofar as asserted against it, and denied the plaintiff's cross motion for summary judgment on the issue of prior written notice of the alleged defective condition insofar as asserted against the County. In addition, the court denied the School District's motion for summary judgment dismissing the complaint insofar as asserted against it. In the order appealed from dated April 14, 2014, upon reargument, the Supreme Court adhered to its original determinations.
Generally, liability for injuries sustained as a result of dangerous and defective conditions on public sidewalks is placed on the municipality, and not the abutting landowner (see Hausser v. Giunta, 88 N.Y.2d 449, 452–453, 646 N.Y.S.2d 490, 669 N.E.2d 470 ; Brennan v. Town of N. Hempstead, 122 A.D.3d 892, 997 N.Y.S.2d 473 ). An abutting landowner will be liable to a pedestrian injured by a defect in a sidewalk where, as is relevant here, the landowner breached a specific ordinance or statute which obligates the owner to maintain the sidewalk (see Staruch v. 1328 Broadway Owners, LLC, 111 A.D.3d 698, 974 N.Y.S.2d 796 ; O'Toole v. City of Yonkers, 107 A.D.3d 866, 967 N.Y.S.2d 751 ; Romano v. Leger, 72 A.D.3d 1059, 900 N.Y.S.2d 346 ). “In order for a statute, ordinance or municipal charter to impose tort liability upon an abutting owner for injuries caused by his or her negligence, the language thereof must not only charge the landowner with a duty, it must also specifically state that if the landowner breaches that duty he will be liable to those who are injured” (Conlon v. Village of Pleasantville, 146 A.D.2d 736, 737, 537 N.Y.S.2d 221 ; see Dalder v. Incorporated Vil. of Rockville Ctr., 116 A.D.3d 908, 909, 983 N.Y.S.2d 835 ).
Here, the School District established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that there was no code provision which placed upon landowners the duty to maintain abutting sidewalks in good condition and imposed tort liability upon them for injuries caused by a violation of that duty (see Maya v. Town of Hempstead, 127 A.D.3d 1146, 8 N.Y.S.3d 372 ; Dalder v. Incorporated Vil. of Rockville Ctr., 116 A.D.3d at 909, 983 N.Y.S.2d 835 ). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, upon reargument, the Supreme Court should have granted the School District's motion for summary judgment dismissing the complaint insofar as asserted against it. “Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies” (Cimino v. County of Nassau, 105 A.D.3d 883, 884, 963 N.Y.S.2d 698 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Fryc–Cannella v. Town of N. Hempstead, 127 A.D.3d 1135, 7 N.Y.S.3d 574 ; Sola v. Village of Great Neck Plaza, 115 A.D.3d 661, 662, 981 N.Y.S.2d 545 ). “The only two recognized exceptions to the prior written notice requirement are where the municipality created the defect through an affirmative act of negligence, or where the defect resulted from a special use of the property by the municipality which conferred a special benefit on it” (Levy v. City of New York, 94 A.D.3d 1060, 1060, 943 N.Y.S.2d 187 ; see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Halitzer v. Village of Great Neck Plaza, Inc., 63 A.D.3d 882, 883, 881 N.Y.S.2d 474 ).
Insofar as is relevant here, the County established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the affidavit of a County employee, which indicated that she had conducted a search of the relevant records covering the period of five years prior to the date of the accident and had found no prior written notice of a defective condition corresponding to the condition alleged by the plaintiff (see Pallotta v. City of New York, 121 A.D.3d 656, 657, 993 N.Y.S.2d 726 ; Petrillo v. Town of Hempstead, 85 A.D.3d 996, 998, 925 N.Y.S.2d 660 ). In opposition, the plaintiff failed to raise a triable issue of fact. The fact that the Nassau County Department of Public Works received prior written notice did not satisfy the statutory requirement that prior written notice be given to the Office of the County Attorney (see Gorman v. Town of Huntington, 12 N.Y.3d 275, 279–280, 879 N.Y.S.2d 379, 907 N.E.2d 292 ; Vardoulias v. County of Nassau, 84 A.D.3d 787, 789, 923 N.Y.S.2d 577 ; McCarthy v. City of White Plains, 54 A.D.3d 828, 829–830, 863 N.Y.S.2d 500 ). Concomitantly, the plaintiff failed to submit evidence sufficient to establish, prima facie, his entitlement to summary judgment on the issue of prior written notice of the alleged defective condition insofar as asserted against the County. Accordingly, upon reargument, the Supreme Court properly adhered to its original determination granting the County's motion for summary judgment dismissing the complaint insofar as asserted against it and denying the plaintiff's cross motion for summary judgment against the County on the issue of prior written notice of the alleged defective condition.