Opinion
92320
April 10, 2003.
Appeal from an order of the Supreme Court (Moynihan Jr., J.), entered June 5, 2002 in Washington County, which denied defendant's motion for summary judgment dismissing the complaint.
Law Office of Martin Martin, Whitehall (Michael S. Martin of counsel), for appellant.
Phelan, Burke Scolamiero L.L.P., Albany (Gerald D. D'Amelia Jr. of counsel), for respondent.
Before: Cardona, P.J., Spain, Carpinello, Lahtinen and Kane, JJ.
MEMORANDUM AND ORDER
Plaintiff was injured when she tripped over a metal anchor protruding from the ground in a grassy area adjacent to the municipal parking lot in which she had just parked her car. In this negligence action against defendant to recover for her injuries, the sole issue on appeal is whether Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint on the ground that it received no prior written notice of the allegedly defective condition of the parking lot in accordance with state and local laws requiring such notice (see e.g. General Municipal Law § 50-e; Village Law § 6-628). We find that the court did not so err and, accordingly, affirm.
While it is firmly established that a municipal parking lot may be considered a "highway" for the purposes of General Municipal Law § 50-e (4) (see e.g. Bang v. Town of Smithtown, 291 A.D.2d 516,lv denied 98 N.Y.2d 665; Lauria v. City of New Rochelle, 225 A.D.2d 1013;Stratton v. City of Beacon, 91 A.D.2d 1018), it is undisputed that the alleged defect that caused plaintiff's accident was an anchor sticking out of the ground in an area adjacent to the parking lot (cf. Poirier v. City of Schenectady, 85 N.Y.2d 310). Thus, to prevail as the proponent of summary judgment, defendant was obligated to establish as a matter of law that this area was indeed part of the parking lot. On this record, we cannot agree that it has met its burden in this regard (compare Vehicle and Traffic Law § 144, with Hall v. City of Syracuse, 275 A.D.2d 1022 and Zizzo v. City of New York, 176 A.D.2d 722;Gallo v. Town of Hempstead, 124 A.D.2d 700; see generally Highway Law § 2).
To the contrary, two of defendant's Department of Public Works employees, including its Superintendent of Public Works, testified at examinations before trial that they did not know who owns or even maintains the grassy area at issue. Each employee specifically denied that defendant maintained the area (i.e., mowed the grass or controlled weeds thereon) (see Poirier v. City of Schenectady, supra at 314 [municipality is obligated to correct a protrusion in sidewalk, if aware of such hazard, on property that it is charged with maintaining]; compare Zigman v. Town of Hempstead, 120 A.D.2d 520) and the Superintendent of Public Works specifically opined that defendant did not own it (compare Gutierrez v. Town of Ramapo, 210 A.D.2d 636). Since defendant failed to establish that it owned or maintained the grassy area (see generally Poirier v. City of Schenectady, supra), that this area was indeed considered to be a part of the parking lot over which the public has a general right of passage (see e.g. Lazzari v. Village of Bronxville, 228 A.D.2d 652; Lauria v. City of New Rochelle, supra; Gutierrez v. Town of Ramapo, supra; Englehardt v. Town of Hempstead, 141 A.D.2d 601, lv denied 72 N.Y.2d 808) or that the area served any similar functional purpose as the actual parking lot (see Woodson v. City of New York, 93 N.Y.2d 936; Bang v. Town of Smithtown, supra), summary judgment was properly denied.
Cardona, P.J., Spain, Lahtinen and Kane, JJ., concur.
ORDERED that the order is affirmed, with costs.