Opinion
Index No. 608227/2019 Motion Sequence No. 002 003 004 005
02-10-2022
KATHERINE STEWART and JOHN STEWART, Plaintiff(s), v. TOWN OF HEMPSTEAD, THE COUNTY OF NASSAU, SUZANNE GIMPEL, and NICOLETTA GRABISCH, Defendant(s).
Unpublished Opinion
Submitted: 11/19/2021
PRESENT: Hon. Thomas Rademaker, J.S.C.
Hon. Thomas Rademaker, J.S.C.
UPON DUE DELIBERATION AND CONSIDERATION BY THECOURT of the foregoing papers, including e-filed documents/exhibits numbered 44 through and including 210, motion sequences 002, 003, 004, and 005 are decided as follows:
The defendants, through separate motions, move pursuant to CPLR §3212, for orders which seek, inter alia, dismissal of the Plaintiffs' complaint and all cross-claims. The Plaintiff opposes all four of the defendants' summary judgment motions.
The Plaintiffs commenced this action to recover damages for injuries from an alleged trip and fall incident which occurred on March 9, 2019, at approximately 1:30 p.m. on the sidewalk adjacent to the sides of the premises known at 2918 Davis Street, Oceanside, New York (Owned by Defendant GIMPEL) and: 2921 Stevens Street, Oceanside, New York (owned by Defendant GRABISCH).
The Plaintiff KATHERTNE STEWART claims that she had tripped on the portion of the sidewalk where cars turn into a garage, and contends that the Defendant GIMPEL's use of the use of the driveway on a daily basis for over fifteen years afforded not only constituted a special use of that portion of the sidewalk, but afforded the Defendant GIMBEL with an opportunity to observe the alleged sidewalk defect involved in this accident
The Plaintiffs further contend that a curb tree planted in the grass area between the subject sidewalk and the curb, which had been on the property of defendant GRABISCH, is a concurrent: contributing cause of the complained of sidewalk defect, through the uprooting of the sidewalk. The Defendant GRABISCH, the owner of 2921 Stevens Street, does not reside at:that property, but testified at her deposition that she observed the property on a monthly basis to ensure that there are no issues with her tenants.
The affidavit of the Plaintiff's; consulting engineer provides that the defective sidewalk condition had been in existence on the property since December of 2007, and has continued up through the date of the accident. The Plaintiffs consulting engineer affidavit further provides that the Town of Hempstead and County of Nassau's designated witnesses submitted incomplete testimonies and affidavits in that both failed perform appropriate searches with respect to the maintenance of the tree at the property owned by Defendant GRABISCH.
It is well settled that in a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of a material issue of fact (see Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 [1957]', Friends of Animals, Inc. v. Associates Fur Mfrs,, 46 N.Y.2d 1065 [1979]; Zuckerman v. City of New York, 49 N.Y.2d 5557 [1980]; Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]).
The failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegard v. New York University Medical Center, 64 N.Y.2d 851 [1985]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v. City of New York, 49 N.Y.2d 5557 [1980]). The primary purpose of a summary judgment motion is issue finding not issue determination (Garcia v. J. C. Duggan, Inc., 180 A.D.2d570 [1st Dept. 1992]), and it should only be granted when there are no triable issues of fact (see also Andre v. Pomeroy, 35 N.Y.2d 361: [1974]).
This case presents with claims against both private landowners and municipalities. Whether a dangerous condition exists on real property so as to create liability upon the part of the landowner depends upon the particular facts and circumstances of each case and is generally a question of fact for the jury. (Fasano v. Green-Wood Cemetery, 21 A.D.3d 446 [2nd Dept 2005]). To impose liability upon a defendant, there must be evidence that a dangerous or defective condition existed, and that the defendant either created the condition or had actual or constructive notice of it (Rubin v. Cryder House, 39 A.D.3d 840 [2nd Dept. 20070; Penn v. Fleet Bank 12 A.D.3d 584 [2nd Dept 2004]). A defendant has constructive notice of a defect when the defect is visible and apparent and has existed for a sufficient length of time before the accident that it could have been discovered and corrected. (Gordon v. American Museum of Natural History, 68 N.Y.2d 836 [1986]; Larsen v. Congregation B'Nai Jehurun of Staten Island, 29 A.D.3d 643 [2nd Dept 2006]), Both the County of Nassau and Town of Hempstead deny that the had prior written notice of the condition complained of the Plaintiffs, and deny causing or creating the alleged sidewalk defect, "Where, as here, a municipality has enacted a prior written notice law, it may not be subject to liability for injuries caused by a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies" (Wold v City of New York, 115 A.D.3d 939 [2d Dept 2013]; Phillips v City of New York, 107 A.D.3d 774, [2d Dept 2013]- see Martinez v City of New York, 105 A.D.3d 1013, 1014 [2d Dept 2013]), and in addition, actual nor constructive notice of a given defect is sufficient to overcome the requirement of prior written notice (Amabile v City of Buffalo, 93 N.Y.2d 471, 474 [1998]; Caramancia v City of New Rochelie, 268 A.D.2d 496 [2d Dept 2000j).In order for a municipality to be held liable for a condition where no prior written notice was given, a plaintiff must set forth competent evidence that the municipality affirmatively created the alleged offending condition in issue (see Walker v Incorporated Village of Northport, 304 A.D.2d 823 [2d Dept 2003]; Monteleone v Incorporated Village of Floral Park, 74 N.Y.2d 917 [1989]). "The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality" (Wald v City of New York, supra; Long y City at Mount Vernon, 107 A.D.3d 765 [2d Dept 2013]; Oboler v City of New York, 8 N.Y.3d 888, 889-890 [2007]; Miller v Village of' E. Hampton, 98 A.D.3d 1007, 1008 [2d Dept 2012]). In addition, "the affirmative negligence exception is limited to work by the [municipality] that immediately results in the existence of a dangerous condition" iWald v City of New York, supra, quoting Yarborough v City of New York, 10 N.Y.3d 726, 728 [2007], quoting Oboler v City of New York, supra at 889).
Both municipalities deny that they created the alleged sidewalk defect herein. The mere planting of a tree and subsequent failure to prune is not an affirmative action of negligence sufficient to overcome the requirements of prior written notice, (Monteleone v Incorporated Village of Floral Park, 74 N.Y.2d 917 [1989]) It is the Defendants 'contention that the mere planting of a tree and the municipalities* failures to control the roots of the tree, would at most constitute nonfeasance, and not affirmative negligence. (Michela v. County of Nassau, 176 A.D.2d 707 [2nd Dept 1991]). "However, even if the cause of the condition may be attributed to the action of tree roots, it has been held that merely planting a curbside tree does not constitute affirmative negligence and that a prior written notice statute applies to conditions caused by tree roots." (Wald v County of Nassau, 2009 NY Slip Op 31874[U], *7 [Sup Ct, Nassau County 2009])
The Plaintiffs contend that a question of fact exists as to whether Town of Hempstead and the County allowed an overgrown and uprooted tree roots at the location, did not remove said tree and tree roots which had existed in said location prior to the accident, and permitted a raised sidewalk flag to exist in the subject area was a proximate cause of the accident in question. The County's deposition witness testified that he did not know anything about trees and the affidavit of William Nimmo did not address the issue of trees or tree roots. Similarly, the Plaintiff contends that Hempstead's designated witness failed to perform appropriate searches with respect to the planting or maintenance of the tree at the property owned by Defendant GRABISCH.
The contentions raised by the Plaintiffs through their submissions to the Court, including but not limited to die affidavit of the Plaintiffs' consulting engineer, raise questions of fact regarding the Defendants GIMPEL and GRABISCH's responsibility for the alleged sidewalk defect, which include the Defendant GIMPEL's special use of the driveway area at the accident site and the responsibility of Defendant GRABISCH to report to the Town of Hempstead any damage which may have been caused to the sidewalk by the allegedly offensive tree roots. The Plaintiffs engineer documents that the alleged sidewalk defect is longstanding, and dates back to December 2007, and had been present on the property in August 2012.
The Plaintiff has failed to raise a triable issue of fact with respect to the liability of the Town of Hempstead, While the Plaintiff contends that the Hempstead witness's deposition testimony had been “incomplete," particularly with respect to the tree located at the property owned by Defendant GRABISCH, there has been no offer of proof by the Plaintiffs which established the Town of Hempstead's responsibility for the accident. Indeed, the Plaintiffs' ability to seek Town of Hempstead documents and records related to the are not simply confined to the Town's discovery responses or deposition testimony, but may also include records requested pursuant to the Freedom of Information Law. That such proffer was-not-made by the-Plaintiffs obviates the Town of Hempstead's written notice of this condition, as well as any claim that the Town of Hempstead can he;held tortuously responsible for the sidewalk damage allegedly caused by the Defendant Grabisch's tree or its tree roots.
However, the County failed to tile its motion for summary judgment within sixty days of the filing of the plaintiffs Note of Issue, and failed to offer an excuse for late filing, as required by Brill v City of New York, 2 NY3d 648 (2004). Indeed, the failure of a defendant to timely file a summary judgment motion after the filing of the Note of Issue in and of itself merits denial of the motion.
Upon a careful review of the papers submitted in support and in opposition to the Defendant's motions, along with their respective annexed exhibits, including a photograph of the alleged sidewalk defect in question, and given the factual differences between the accounts of the parties, the Defendants' motions for summary judgment (motion sequences 002, 004, and 005) are hereby DENIED, and that the Defendant Town of Hempstead's motion for summary judgment (motion sequence 003) is GRANTED, and it is
ORDERED, that the Plaintiffs Complaint against the Town of Hempstead is dismissed, along with any and all Cross-Claims asserted against the Town of Hempstead by the defendants herein.
All other requested relief, not specifically addressed herein, is hereby DENIED.
This constitutes the Decision and Order of the Court.