Opinion
2011-10-4
Michael LAGRASTA, appellant,v.TOWN OF OYSTER BAY, respondent.
Martin H. Pollack, Mineola, N.Y. (Lisa M. Comeau of counsel), for appellant.Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), for respondent.
Martin H. Pollack, Mineola, N.Y. (Lisa M. Comeau of counsel), for appellant.Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (McCarty III, J.), entered March 18, 2010, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered July 16, 2010, which, upon the order, is in favor of the defendant and against him dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the law, the complaint is reinstated, the defendant's motion for summary judgment dismissing the complaint is denied, and the order is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[c] ).
The plaintiff owned a boat that he docked at a marina owned, operated, and maintained by the defendant, Town of Oyster Bay. On August 21, 2006, the plaintiff allegedly was walking on a floating wooden dock at the marina to access his boat when he tripped and fell over a raised portion of the dock at slip 15. The plaintiff subsequently commenced this action to recover damages for personal injuries allegedly sustained as a result of the fall. The Supreme Court granted the Town's motion for summary judgment dismissing the complaint. We reverse.
The Town failed to meet its prima facie burden of showing that it is entitled to judgment as a matter of law. Contrary to the Town's contention and the conclusion of the Supreme Court, the action is not subject to dismissal on the ground that the Town lacked prior written notice of the alleged defective condition. Prior written notice laws are in derogation of the common law and must be strictly construed ( see Gorman v. Town of Huntington, 12 N.Y.3d 275, 279, 879 N.Y.S.2d 379, 907 N.E.2d 292; Selca v. City of Peekskill, 78 A.D.3d 1160, 1161, 912 N.Y.S.2d 287). Here, the location of the accident does not fall within the ambit of the Town's prior written notice statute, which applies to alleged defects on any “street, highway, bridge, culvert, sidewalk or crosswalk” (Code of Town of Oyster Bay § 160–1 [A]; see Selca v. City of Peekskill, 78 A.D.3d at 1161, 912 N.Y.S.2d 287; cf. Englehardt v. Town of Hempstead, 141 A.D.2d 601, 602, 529 N.Y.S.2d 523).
Also contrary to the Town's contention and the conclusion of the Supreme Court, the Town failed to make a prima facie showing that it did not create or have actual or constructive notice of the alleged defective condition ( see Villano v. Strathmore Terrace Homeowners Assn., Inc., 76 A.D.3d 1061, 908 N.Y.S.2d 124; Molloy v. Waldbaum, Inc., 72 A.D.3d 659, 659–660, 897 N.Y.S.2d 653; Gradwohl v. Stop & Shop Supermarket Co., LLC, 70 A.D.3d 634, 636, 896 N.Y.S.2d 85). In support of its motion, the Town submitted the deposition testimony of Salvatore Cornicelli, the manager of the marina at the time the accident occurred. During Cornicelli's testimony, it was elicited that, in June 2006, notations were made in the marina's boat check inspection reports indicating that there was a raised board at slip 14 and slip 15. Cornicelli testified, when questioned about these notations, that this meant that there were one or two raised boards that needed replacing in the area.
Finally, contrary to the Town's contention, the evidence submitted by the Town, including photographs and the plaintiff's deposition testimony, was insufficient to demonstrate, prima facie, that the alleged defect was trivial and, therefore, not actionable ( see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489; Araujo v. City of New York, 84 A.D.3d 993, 994, 922 N.Y.S.2d 806;
Bolloli v. Waldbaum, Inc., 71 A.D.3d 618, 619, 896 N.Y.S.2d 400).
Accordingly, the Supreme Court should have denied the Town's motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's papers in opposition ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).