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Figueroa-Corser v. Town of Cortlandt

Supreme Court of New York, Second Department

June 12, 2013

Lourdes M. Figueroa-Corser, etc., et al., respondents,
v.
Town of Cortlandt, et al., appellants. Index No. 1724/09

Hodges Walsh & Slater, LLP, White Plains, N.Y. (Paul E. Svensson of counsel), for appellant Town of Cortlandt.

Jeffrey A. Aronsky, P.C., New York, N.Y., for appellant Furnace Dock, Inc.

Pillinger Miller Tarallo, LLP, Syracuse, N.Y. (Jeffrey D. Schulman of counsel), for appellant Blitman Development Corp.

Joseph J. Fonseca, Carmel, N.Y., for respondents.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action to recover damages for wrongful death, (1) the defendant Town of Cortlandt appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), dated December 5, 2011, which granted the plaintiffs' motion for leave to reargue their opposition to its prior motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, which had been granted in a prior order of the same court dated September 7, 2011, and, upon reargument, vacated the determination in the order dated September 7, 2011, and thereupon denied its motion for summary judgment dismissing the complaint insofar as asserted against it, and (2) the defendants Furnace Dock, Inc., and Blitman Development Corp. separately appeal, as limited by their respective briefs, from so much of an order of the same court dated December 7, 2011, as denied their respective motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them.

ORDERED that the order dated December 5, 2011, is affirmed; and it is further,

ORDERED that the order dated December 7, 2011, is affirmed insofar as appealed from by the defendant Furnace Dock, Inc.; and it is further,

ORDERED that the order dated December 7, 2011, is reversed insofar as appealed from by the defendant Blitman Development Corp., on the law, and the motion of that defendant for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs payable by the defendants Town of Cortlandt and Furnace Dock, Inc., and one bill of costs is awarded to the defendant Blitman Development Corp. payable by the plaintiffs.

John Corser, the husband of the plaintiff Lourdes M. Figueroa-Corser, was killed when a tree fell on his car as he was driving on Furnace Dock Road in the defendant Town of Cortlandt. The tree was located on property whose title owner was the defendant Furnace Dock, Inc. (hereinafter Furnace Dock), and at the time of the accident, the property was in contract to be sold to the defendant Blitman Development Corp. (hereinafter Blitman).

The Supreme Court providently exercised its discretion in granting the plaintiffs' motion for leave to reargue their opposition to the Town's prior motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, as the plaintiffs demonstrated that the Supreme Court initially misapprehended a fact in determining that motion (see CPLR 2221[d][2]; Meadowbrook Farms Homeowners Assn., Inc. v JZG Resources, Inc., 105 A.D.3d 820, 821).

Upon reargument, the Supreme Court properly denied the Town's prior motion. " [T]he duty of a municipality to maintain its roadways in a reasonably safe condition extends to trees which are adjacent to the road and which could reasonably be expected to pose a danger to travellers'" (Hilliard v Town of Greenburgh, 301 A.D.2d 572, 572, quoting Leach v Town of Yorktown, 251 A.D.2d 630, 630). "However, liability does not attach unless the municipality had actual or constructive notice of the dangerous condition" (Hilliard v Town of Greenburgh, 301 A.D.2d at 572). "To provide constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it'" (Ferrigno v County of Suffolk, 60 A.D.3d 726, 727, quoting Gordon v American Museum of Natural History, 67 N.Y.2d 836, 837). "In cases involving liability for fallen trees, a manifestation of nonvisible decay must be readily observable in order to give rise to a duty to prevent harm" (Ferrigno v County of Suffolk, 60 A.D.3d at 727).

Here, the Town established its prima facie entitlement to judgment as a matter of law by submitting evidence that it did not have actual or constructive notice of the alleged dangerous condition of the subject tree (see Fowle v State of New York, 187 A.D.2d 698, 699). In opposition, the plaintiffs submitted an expert affidavit which raised a triable issue of fact as to whether the Town had constructive notice of the alleged dangerous condition of the tree (see Harris v Village of E. Hills, 41 N.Y.2d 446, 449; R ...


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