Opinion
2014-04-23
Anthony LIPARI, plaintiff-respondent, v. TOWN OF OYSTER BAY, appellant, Scott Kinhackl, et al., defendants-respondents.
Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), for appellant. Anthony J. LoPresti, Garden City, N.Y., for plaintiff-respondent.
Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), for appellant. Anthony J. LoPresti, Garden City, N.Y., for plaintiff-respondent.
Peter E. Finning (McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. [Patrick M. Murphy], of counsel), for defendants-respondents.
In an action to recover damages for personal injuries, the defendant Town of Oyster Bay appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered December 11, 2012, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is reversed, on the law, with one bill of costs payable to the defendant Town of Oyster Bay by the defendants Scott Kinhackl, Michelle Kinhackl, and Antoinette Sarro, and the plaintiff Anthony Lipari, appearing separately and filing separate briefs, and the motion of the defendant Town of Oyster Bay for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.
The plaintiff allegedly sustained personal injuries when he tripped and fell on a sidewalk slab raised by tree roots in front of a premises in the defendant Town of Oyster Bay. At the time of the accident, the defendants Scott Kinhackl, Michelle Kinhackl, and Antoinette Sarro were the owners and residents of the subject premises.
“A municipality that has adopted a ‘prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” ( Forbes v. City of New York, 85 A.D.3d 1106, 1107, 926 N.Y.S.2d 309;see Poirier v. City of Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555, 648 N.E.2d 1318;Hanover Ins. Co. v. Town of Pawling, 94 A.D.3d 1055, 943 N.Y.S.2d 152;Abano v. Suffolk County Community Coll., 66 A.D.3d 719, 719, 887 N.Y.S.2d 200;Katsoudas v. City of New York, 29 A.D.3d 740, 741, 815 N.Y.S.2d 243). Where such a municipality establishes that it lacked prior written notice of an alleged defect, the burden shifts to the plaintiff to demonstrate the applicability of one of the two recognized exceptions to the prior written notice requirement ( see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;Hanover Ins. Co. v. Town of Pawling, 94 A.D.3d at 1056, 943 N.Y.S.2d 152;Kiszenik v. Town of Huntington, 70 A.D.3d 1007, 1007–1008, 895 N.Y.S.2d 208).“The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property” ( Forbes v. City of New York, 85 A.D.3d at 1107, 926 N.Y.S.2d 309;see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Hanover Ins. Co. v. Town of Pawling, 94 A.D.3d at 1056, 943 N.Y.S.2d 152;Filaski–Fitzgerald v. Town of Huntington, 18 A.D.3d 603, 604, 795 N.Y.S.2d 614).
In the complaint, the plaintiff did not allege that he complied with the prior written notice provisions contained in Town Law § 65–a(2) or section 160–1 of the Code of the Town of Oyster Bay. Instead, the plaintiff alleged in his notice of claim, complaint, and bill of particulars that the Town affirmatively created the subject dangerous condition through various specified acts of negligence. “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” ( Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226;see Miller v. Village of E. Hampton, 98 A.D.3d 1007, 951 N.Y.S.2d 171;Braver v. Village of Cedarhurst, 94 A.D.3d 933, 942 N.Y.S.2d 178). The Supreme Court, in denying the Town's motion, concluded that it failed to meet its prima facie burden since it did not demonstrate that it did not affirmatively create the condition alleged. However, the Supreme Court erred in so concluding.
The evidence submitted in support of the motion established that the planting of a tree or trees adjacent to the sidewalk where the accident occurred, and the alleged failure to maintain the roots of the tree or trees, would at most constitute nonfeasance, not affirmative negligence ( see Monteleone v. Incorporated Village of Floral Park, 143 A.D.2d 647, 532 N.Y.S.2d 874,affd. 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549 N.E.2d 459;Lowenthal v. Theodore H. Heidrich Realty Corp., 304 A.D.2d 725, 759 N.Y.S.2d 497;Michela v. County of Nassau, 176 A.D.2d 707, 574 N.Y.S.2d 965). In opposition, neither the plaintiff nor the defendants Scott Kinhackl, Michelle Kinhackl, and Antoinette Sarro raised a triable issue of fact as to whether the Town created the condition alleged through an affirmative act of negligence.
Therefore, the Supreme Court should have granted the Town's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. MASTRO, J.P., BALKIN, SGROI and LASALLE, JJ., concur.