Yauch v. Cnty. of Nassau

2021 NY Slip Op 33796(U)

LAURIE LOU YAUCH, Plaintiff, v. COUNTY OF NASSAU, TOWN OF HEMPSTEAD, VSPA ENTERPRISE INC., 3056-3068 HEMPSTEAD, LLC, MINK EYELESAHSES, ARTHUR SMYLES AND POPY SMILES, Defendants.

No. 602924/2020, Index No. 602924/2020, Sequence No. 001

Supreme Court, Nassau County

April 1, 2021

Unpublished Opinion

SHORT FORM ORDER

HON HELEN VOUTSINAS JUSTICE

The following papers were read on this motion:

Amended Notice of Motion, Affirmation, Affidavits, Exhibits

Affirmation in Partial Opposition

Reply Affirmation

Affirmation in Reply to Affirmation in Partial Opposition

Affirmation in Opposition

Reply Affirmation

Defendant County of Nassau (hereinafter "the County") moves for an order pursuant to CPLR §3212 granting summary judgment dismissing plaintiffs' complaint and second amended complaint as against the County, and all cross claims asserted by co-defendants against it, upon the grounds that the County was not provided with prior written notice of the alleged defective condition and that the County owes no duty of care to plaintiff. The motion is decided as hereinafter provided.

This is an action for personal injuries arising out of a trip and fall accident. Plaintiff alleges that on February 23, 2019 at approximately 7:45 p.m. while walking on the sidewalk by a tree well in front of or near premises 3062 Hempstead Turnpike, Levittown, New York, plaintiff tripped over a tree branch that was not removed from the ground and as a result suffered serious injuries.

The County argues that it is entitled to summary judgment because there was no prior written notice of any defective condition on the steps, and the case does not fall within either the affirmative negligence or special uses exceptions to the prior written notice rule.

Where a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies. (Trela v City of Long Beach, 157 A.D.3d 747, 749 [2d Dept 2018]; Palka v Village of Ossining, 120 A.D.3d 641, 641 [2d Dept 2014] Leiserowitz v. City of New York 81 A.D.3d 788 [2d Dept 2011]; De La Reguera v. City of New York, 74 A.D.3d 1127 [2d Dept 2010]; Schleif v City of New York, 60 A.D.3d 926 [2d Dept 2009]; Smith v. Town of Brookhaven, 45 A.D.3d 567 [2d Dept 2007]; see, Amabile v. City of Buffalo, 93 N.Y.2d 471, 474 [1999]; Poirer v. City of Schenectady, 85 N.Y.2d 310,314-315 [1995]).' '

"Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the [municipality]." (Rodriguez v New York City, 152 A.D.3d 810 [2d Dept 2017]; Sommer v Town of Hempstead, 271 A.D.2d 434 [2d Dept 2000] ["A plaintiff's failure to plead and prove that the requisite prior written notice of a dangerous condition was given to a municipality requires dismissal of the complaint insofar as asserted against the municipality."]).

There are, however, two exceptions to this rule: (1) "where the locality created the defect or hazard through an affirmative act of negligence" which "immediately results" in the existence of a dangerous condition; and (2) "where a special use confers a special benefit upon the locality" (see, Amabile, 93 N.Y.2d at 474; see, San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111 [2010]; Yarborough v. City of New York, 10 N.Y.3d 726 [2008]; Oboler v. City of New York, 8 N.Y.3d 888, 890 [2007]; Delgado v. County of Suffolk, 40 A.D.3d 575, 576; see cdso, Pluchino v Village of Walden, 63 A.D.3d 897; Diaz v. City of New York, 56 A.D.3d 599, 868 N.Y.S.2d 229 [2d Dept 2008]).

To establish that a defendant municipality created the alleged defect, the plaintiff must show that the defect was the result of an affirmative act of negligence. (See gen Amabile, 93 N.Y.2d 471). "To fall within the exception, the repair must immediately result in a dangerous condition (see Oboler v City of New York, 8 N.Y.3d 888, 889 [2007]; Laracuente v City of New York, 104 A.D.3d 822 [2013]), which made the defective condition more dangerous than it was before any efforts were made to repair it (see Wilson v. Inc. Vill. of Hempstead, 120 A.D.3d 665, 666-67 [2d Dept 2014]; Kushner v City of Albany, 7 N.Y.3d 726 [2006]; Perrington v City of Mount Vernon, 37 A.D.3d 571, 572 [2007]).

It is not disputed that the County has a prior written notice statute. Nassau County Administrative Code §12-4.0[e] provides, in relevant part:

"[n]o civil action shall be maintained against the County for damages or injuries to person . . . sustained by reason of any sidewalk . . . walkway . . . curb . . . being defective, out of repair, unsafe, dangerous, or obstructed . . . unless such sidewalk ... walkway . .. curb . .. and unless written notice of such defective, unsafe, dangerous or obstructed condition of such sidewalk . . . walkway . . . curb . . . was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of ... to make the place otherwise reasonably safe. Such written notice shall specify the particular place and nature of such defective, unsafe, dangerous or obstructed condition .... Notice is required to be given as herein provided shall be made in writing by certified or registered mail directed to the Office of the County Attorney, One West Street, Mineola, New York 11501."

In support of its motion, the County submits the affidavit of Robert S. Dujardin, an attorney's assistant assigned to the Litigation and Appeals Bureau in the Office of the County Attorney, at 1 West Street, Mineola, New York. He attests that his duties include maintaining the files containing notices of claim and notices of defect, and that:

The Office of the County Attorney asked me to conduct a search to determine whether Nassau County has prior written notice of a "tree branch that was not removed from the ground" located on the "sidewalk/curb in front/near the tree well of 3062 Hempstead, Turnpike, Levittown, New York 11756" ("accident location").

In response to this request, I attest that I personally searched the notice of claim files and notice of defect files maintained by the Office of the County Attorney. The notice of claim files and notice of defect files are organized by date and location. The time period of the search I conducted was six (6) years prior to and including the accident date of February 23, 2019 ("accident date").

As a result of this search, I attest that there are no records of prior notice of claim or prior written complaints for the accident location for a time period of six (6) years prior to and including the accident date.

The County also submits that affidavit of William Nimmo, who states that he is Deputy Commissioner of the Nassau County Department of Public Works ("DPW") and that is such capacity, and based on his experience and review of the records, documentation and information maintained by DPW, he is personally familiar with appurtenances, roadways, sidewalks, tree wells, curbs, streets, highways and properties within the jurisdiction of the County. At the request of the Office of the Nassau County Attorney, he conducted a search of the records, documentation and information maintained by DPW to determine whether the County has jurisdiction of the sidewalk, curb and tree well located in front of 3062 Hempstead Turnpike, Levittown, New York. He states that after his search and review of the records, documentation and information maintained by DPW:

I attest that the County of Nassau does not have documentation, records, and/or information regarding repair records, inspection records, tree well records, contracts, permits, licenses, maintenance records, and/or complaints regarding the accident location and tree well on or before the accident date. The County of Nassau does not own, manage, maintain, control, operate supervise, inspect, repair, or otherwise have any involvement with

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