Christie v. Town of Blip

2021 NY Slip Op 33185(U)

TIMOTHY CHRISTIE & SAMANTHA CHRISTIE, Plaintiffs, v. TOWN OF BLIP and WESTVUE PROPERTY I LLC, Defendants.

Index No. 613945/2018

Supreme Court, Suffolk County

March 22, 2021

Unpublished Opinion

ZALMAN SCHNURMAN & MINER Attorney for Plaintiffs

MCGIFF HALVERSON DOOLEY, LLP Attorney for Defendant Town of Islip

SANTAMARTNA & ASSOCIATES Attorney for Defendant Westvue Property

PRESENT: Hon. JOSEPH C. PASTORESSA Justice of the Supreme Court

Joseph C. Pastoressa Judge

Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers (mot. seq. 003) by plaintiffs, dated August 31, 2020; Notice of Cross Motion and supporting papers Answering Affidavits and supporting papers by Town of Islip dated October 20, 2020; Replying Affidavits and supporting papers by plaintiffs, dated October 26, 2020: Other; Notice of Motion/ Order to Show Cause and supporting papers (mot seq. 004) by plaintiffs, dated November 2. 2020; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by the Town, dated November 24, 2020 Replying Affidavits and supporting papers by plaintiffs, dated November 30. 2020; Other; it is

ORDERED that the motion by plaintiffs pursuant to CPLR 3212 for summary judgment on the issue of liability against the defendant Town of Islip and to strike certain affirmative defenses is granted; and it further ORDERED that the motion by plaintiffs for leave to amend the notice of claim and to amend the complaint is granted.

The plaintiff Timothy Christie and his wife, derivatively, commenced this action to recover damages for personal injuries that he allegedly sustained as a result of a trip and fall accident on February 24, 2018. The incident occurred on a sidewalk abutting property located at 1367 Lombardy Boulevard in Bay Shore, New York. Plaintiffs allege that the sidewalk was owned by defendant the Town of Islip (the "Town"), and that the Town negligently maintained the sidewalk. Furthermore, plaintiffs claim that the Town had prior written notice of the defective condition since 2009, and that it failed to remedy the condition.

Plaintiffs now move for summaiy judgment on the issue of the Town's liability, and to strike certain affirmative defenses that it has asserted. Plaintiffs argue that the Town received prior written notice concerning the condition of the sidewalk when it received the notice of claim from a non-party who tripped and fell at the same location some years prior to his accident. In opposition, the Town contends that there is an issue of fact whether it received prior written notice, and that there is a dispute concerning the location of the alleged defect; therefore, summaiy judgment is not warranted.

Under New York law, a town has a continuing, nondelegable duty to maintain its sidewalks in a reasonably safe condition for pedestrians (see Amabile v City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77 [1999]; Delgado v County of Suffolk, 40 A.D.3d 575, 835 N.Y.S.2d 379 [2d Dept 2007]; Wilkie v Town of Huntington, 29 A.D.3d 898, 816 N.Y.S.2d 148 [2d Dept 2006]). Nevertheless, where a town has enacted a prior written notice statute, it will not be subjected to liability for injuries caused by a defective or dangerous condition on a sidewalk unless it has received prior written notice of such condition or an exception to the prior written notice requirement applies (see Amabile v City of Buffalo, 93 N.Y.2d 471; Hannibal v Incorporated Vil. of Hempstead, 110 A.D.3d 960, 961, 973 N.Y.S.2d 742 [2d Dept 2013]; Cimino v County of Nassau, 105 A.D.3d 883, 884, 963 N.Y.S.2d 698 [2d Dept 2013]; Braver v Village of CedarhursL 94 A.D.3d 933, 934, 942 N.Y.S.2d 178 [2d Dept 2012]). There arc only two exceptions to the prior written notice rule, namely, where the locality created the defect or hazard through an affirmative act of negligence, and where a special use confers a special benefit upon the locality (see Amabile v City of Buffalo, supra; Miller v Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171, 173 [2d Dept 2012]; Sollowen v Town of Brookbaven, 43 A.D.3d 816, 841 N.Y.S.2d 351 [2d Dept 2007]). The affirmative negligence exception is limited to work that the municipality performs that immediately results in the existence of a dangerous condition (see Yarborough v City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d261 [2008]).

Pursuant to Town Law § 65-a and Town of Islip Code § 47A-3, as a precondition to commencing a civil action against the Town to recover damages for personal injuries sustained as a result of a defect in Town property, the Town must have been given prior written notice of the defect and failed to repair it within a reasonable time thereafter (see Nixdorf v East Islip School Dist., 276 A.D.2d 759, 715 N.Y.S.2d 432 [2d Dept 2000]). The Code provides, in part, that "[n]o civil action shall be maintained against the Town ... for damages or injuries ... sustained by reason of any ... sidewalk ... owned or maintained by the Town ... being defective ... unless written notice of such defective ... sidewalk ... was actually given to the Town Clerk or Commissioner of Public Works" (Code of Town of Islip § 47A-3[A]; see Otto v Miller, 177 A.D.3d 895, 896, 113 N.Y.S.3d 228 [2d Dept 2019]).

Here, plaintiffs submit evidence that in 2009 the Town received a notice of claim concerning a trip and fall on the sidewalk in front of 1367 Lombardy Boulevard. The notice of claim stated that the defect in the sidewalk was located approximately 24 feet south of the roadway's intersection with Huron Road. A letter dated July 14, 2009 was sent to the Department of Public Works (DPW) and the executive assistant to the commissioner of the DPW, which included the notice of claim and photographs of the area. In addition, the record shows that a DPW service notice dated August 14, 2009, listed the service location as 1367 "Lombardy Blvd." and included a note which stated "received a notice of complaint that someone tripped on the sidewalk ifo [sic] above approx' [sic] five feet from a tree pis [sic] check thanks." Another DPW service notice dated August 25, 2014 included a note stating "tree-to be removed near the driveway, states the tree is breaking up sidewalk." Although that notice listed the service location as 1365 Lombardy Boulevard, Quintal Contracting Corp, a private company, was commissioned to remove the tree and issued an invoice to the DPW indicating that the tree was removed from in front of 1367 Lombardy Boulevard. Quintal also noted that the "sidewalk [was] uplifting."

Based on this evidence, plaintiffs made a prima facie showing that the Town had prior written notice of the defective condition and failed to address the condition (see Pruclta v Town of Babylon, 138 A.D.3d 1083, 1084-1085, 30 N.Y.S.3d 671 [2d Dept 2016]; see also Bochner v Town of Monroe, 169 A.D.3d 631, 632, 93 N.Y.S.3d 136 [2d Dept 2019]). In opposition, the Town contends that plaintiffs failed to show that the notice of claim was actually given to the Commissioner of Public Works in accordance with the statutory requirement. However, the evidence demonstrates that the notice of claim was mailed to the DPW and received by the agency. The Town has failed to submit an affidavit or any other evidence disputing that the notice of claim was actually received by the appropriate entity. In addition Peter Kletcha, the Town's DPW representative, testified that the department performed work in the area where the accident occurred prior to the accident, and that a tree was removed from the...