Parthesius v. Town of Huntington

1

2020 NY Slip Op 35072(U)

DAMON PARTHESIUS, Plaintiff, v. TOWN OF HUNTINGTON, Defendant.

Index No. 604186/2019, Mot. Seq. No. 001-MD

Supreme Court, Suffolk County

July 20, 2020

Unpublished Opinion

Orig. Return Date: 03/12/2020

Mot Submit Date: 07/02/2020

PLAINTIFF'S ATTORNEY GRUENBERG KELLY DELLA

DEFENDANT'S ATTORNEY NICHOLAS R. CIAPPETA, ESQ. Town Attorney for the Town of Huntington

PRESENT: Hon. George Nolan Justice Supreme Court

George Nolan, Judge

Upon the e-filed documents numbered 24 through 39, and upon due deliberation and consideration by the Court of the foregoing papers, it is hereby

ORDERED that defendant Town of Huntington's motion (motion sequence no. 001) for summary judgment is denied.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff, Damon Parthesisus, on October 9 2018, when he tripped and fell while walking on the sidewalk within the municipal parking lot located between Main and Elm Streets in Huntington, New York. By his bill of particulars,^[1] plaintiff alleges that a patched asphalt repair between two uneven sidewalk flags, created a dangerous condition and that defendant was negligent in creating a defective condition, failing to maintain the sidewalk and failing to provide sufficient lighting and illumination at the accident location.

The defendant Town of Huntington ("Town") moves for summary judgment in its favor dismissing the complaint against it on the basis that it lacked prior written notice of the alleged dangerous condition as mandated by Town Law §65-a and Huntington Town Code § 174-3 before plaintiff was injured. In support, the Town provides, among other things, copies of the pleadings, deposition transcripts, an affidavit from Richard Scheffler, Highway Construction Coordinator, an affidavit from Diana Esposito, Principal Office Assistant in the Town Clerk's office, an affidavit from Mark Tyree, from the Town Department of General Services and an affidavit from John Carroll, a maintenance Mechanic Ill/Cement Finisher with the Town Department of General Services.^[2]

It is well settled that the proponent of a summary judgment motion bears the initial burden of establishing his or her entitlement to judgment, as a matter of law, in his or her favor by offering admissible evidence sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hasp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.2d 320 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557,427 N.Y.S.2d 595 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of any opposition thereto (Winegrad v New York Univ. Med. Ctr., supra). Once the movant has made the requisite showing, the burden then shifts to the opposing party, requiring him or her to present admissible evidence and facts sufficient to require a trial on any issue of fact (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, supra). On such a motion, the Court is charged with determining whether issues of fact exist while viewing any evidence in a light most favorable to the nonmoving party; the Court is not responsible for resolving issues of fact or determining matters of credibility (see Chimbo v Bolivar, 142 A.D.3d 944, 37 N.Y.S.3d 339 [2d Dept 2016]; Pearson v Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53 [2d Dept 2009]; Kolivas v Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392 [2d Dept 2005]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v Bolivar, supra; Benetatos v Comerford, 78 A.D.3d 730, 911 N.Y.S.2d 155 [2d Dept 2010]).

"[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 [2d Dept 2011]). Prior written notice laws must be strictly construed (Lagrasta v Town of Oyster Bay, 88 A.D.3d658,930N.Y.S.2d254 [2d Dept 2011]). "A verbal or telephonic communication to a municipal body, even if reduced to writing, cannot satisfy the prior written notice requirement" (Tortorici v City of New York, 131 A.D.3d 959, 960, 16 N.Y.S.3d 572 [2d Dept 2015]; see Gorman v Town of Huntington, 12 N.Y.3d 275, 280, 879 N.Y.S.2d 379 [2009]). Writings prepared by Town employees as a result of verbal complaints do not satisfy the prior written notice requirement (see Wolin v Town of North Hempstead, 129 A.D.3d 833, 11 N.Y.S.3d 627 [2d Dept 2015]). Prior written repair orders also do not satisfy the statutory requirement (see Lopez v Gonzalez, 44 A.D.3d 1012, 845 N.Y.S.2d 91 [2d Dept 2007]; Dalton v City of Saratoga Springs, 12 A.D.3d 899, 784 N.Y.S.2d 702 [3d Dept 2004]). Actual or constructive notice of the defective condition arc both insufficient to satisfy the prior written notice requirement (Groninger v Village of Mamaroneck, 67 A.D.3d 733, 888 N.Y.S.2d 205 [2d Dept 2009]).

However, "[r]ecognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it" (Morreale v Town of Smithtown, 153 A.D.3d 917, 918, 61 N.Y.S.3d 269 [2d Dept 2017], quoting Miller v Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171 [2d Dept 2012]). Any affirmative negligence must immediately result in the existence of the dangerous condition (Yarborough v City of New York, 10 N.Y.3d 726,853 N.Y.S.2d 261 [2008]; Trela v City of Long Beach, 157 A.D.3d 747, 69 N.Y.S.3d 58 [2d Dept 2018]).

The Town has demonstrated that it had no prior written notice of the alleged defective roadway condition (see Betz v Town of Huntington, 106 A.D.3d 1041, 966 N.Y.S.2d 471 [2d Dept 2013]). Pursuant to Section 174-3 of the Huntington Town Code and Section 65-a of the Town Law, the Town will not be liable for a defective or dangerous condition on a sidewalk unless written notice of the defective condition is actually given to the Town Clerk or Superintendent of Highways. The affidavit of Diana Esposito establishes that a search of the Town Clerk's records revealed that no written complaints were received by the Clerk's office concerning any dangerous condition on the subject sidewalk for a period of time dating back at least 5 year prior to the date of plaintiff s accident (see Fisher v Town of North Hampstead, 134 A.D.3d 670, 20 N.Y.S.3d 167 [2d Dept ...