Margaret E. Trela, respondent,
City of Long Beach, appellant, et al., defendants. (Appeal No. 1) Margaret E. Trela, plaintiff-respondent,
City of Long Beach, defendant-respondent, Christensen Management, Inc., et al., appellants. (Appeal No. 2) Index No. 2532/15
- October 20, 2017
M. Agostisi, Corporation Counsel, Long Beach, NY (Charles M.
Geiger of counsel), for appellant in Appeal No. 1 and
defendant-respondent in Appeal No. 2.
Goldberg Segalla LLP, Garden City, NY (Brendan T. Fitzpatrick
and Amanda S. Reynolds of counsel), for appellants in Appeal
Sullivan Papain Block McGrath & Cannavo P.C., New York,
NY (Brian J. Shoot of counsel), for respondent in Appeal No.
1 and plaintiff-respondent in Appeal No. 2.
WILLIAM F. MASTRO, J.P. SHERI S. ROMAN ROBERT J. MILLER
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendant City of Long Beach appeals, as limited by its
brief, from so much of an order of the Supreme Court, Nassau
County (Palmieri, J.), entered February 10, 2017, as denied
that branch of its cross motion which was for summary
judgment dismissing the complaint insofar as asserted against
it, and the defendants Christensen Management, Inc., and
Board of Managers of the Oceanwalk Condominium Association
separately appeal, as limited by their brief, from so much of
the same order as denied their motion for summary judgment
dismissing the complaint and all cross claims insofar as
asserted against them.
that the order is affirmed insofar as appealed from, with one
bill of costs payable to the plaintiff by the defendants
appearing separately and filing separate briefs.
plaintiff commenced this action to recover damages for
personal injuries she allegedly sustained when she fell while
riding her bicycle on a sidewalk abutting the premises of the
defendants Christensen Management, Inc., and Board of
Managers of the Oceanwalk Condominium Association
(hereinafter together Oceanwalk). Approximately 1% months
prior to the incident, the defendant City of Long Beach had
excavated a portion of the sidewalk and backfilled it with a
temporary patch, cordoning off the area with safety barrels
and yellow caution tape. At the time of the incident, the
safety barrels and yellow caution tape were not present.
moved for summary judgment dismissing the complaint and all
cross claims insofar as asserted against it, contending that
it had no duty to maintain the sidewalk where the accident
occurred and, in any event, that it did not have notice of
the alleged defect. The City cross-moved, inter alia, for
summary judgment dismissing the complaint insofar as asserted
against it, contending that it did not have prior written
notice of the alleged defect and that it did not
affirmatively create it. In the order appealed from, the
Supreme Court denied both motions. Oceanwalk and the City
respect to Oceanwalk, "[g]enerally, liability for
injuries sustained as a result of a dangerous condition on a
public sidewalk is placed on the municipality, and not on the
owner of the abutting land" (James v Blackmon,
58 A.D.3d 808, 808). "The exceptions to this rule are
when the landowner actually created the dangerous condition,
made negligent repairs that caused the condition, created the
dangerous condition through a special use of the sidewalk, or
violated a statute or ordinance imposing liability on the
abutting landowner for failing to maintain the sidewalk"
(Buonviaggio v Parkside Assoc., L.P., 120 A.D.3d
460, 461; see Gelstein v City of New York, 153
A.D.3d 604, 604; Metzker v City of New York, 139
A.D.3d 828, 829). The Charter of the City of Long Beach
imposes a duty on landowners to maintain and repair abutting
sidewalks (see Charter of City of Long Beach §
256). Here, Oceanwalk failed to establish, prima facie, that
it had no duty to maintain the abutting sidewalk where the
incident occurred (see Charter of City of Long Beach §
256; Code of Ordinances of City of Long Beach § 1-2).
Oceanwalk also failed to establish, prima facie, that it did
not have constructive notice of the condition that allegedly
caused the plaintiff to fall (see Jeremias v Lake Forest
Estates, 147 A.D.3d 742, 743; James v Orion
Condo-350 W. 42nd St., LLC, 138 A.D.3d 927, 927;
Pryzywalny v New York City Tr. Auth., 69 A.D.3d 598,
599). Since Oceanwalk failed to meet its initial burden, the
Supreme Court properly denied its motion, without regard to
the sufficiency of the opposition papers (see Winegrad v
New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
respect to the City, "[w]here, as here, 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" (Palka v Village of
Ossining, 120 A.D.3d 641, 641; see Amabile v City of
Buffalo, 93 N.Y.2d 471, 474). There are two
"recognized exceptions to the rule-that the municipality
affirmatively created the defect through an act of negligence
or that a special use resulted in a special benefit to the
locality" (Yarborough v City of New York, 10
N.Y.3d 726, 728). The affirmative act exception, the only
exception at issue here, is limited to work by the
municipality that immediately results in the existence of a
dangerous condition (id. at 728; Oboler v City
of New York, 8 N.Y.3d 888, 889; Beiner v Village of
Scarsdale, 149 A.D.3d 679, 680).
prima facie showing which a defendant must make on a motion
for summary judgment is governed by the allegations of
liability made by the plaintiff in the pleadings"
(Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 214).
The plaintiff alleged, in her pleadings, that the City
negligently maintained and repaired the sidewalk and
affirmatively created the dangerous condition that caused the
accident. Thus, to establish its prima facie entitlement to
judgment as a matter of law, the City was required to
demonstrate, prima facie, both that it did not have prior
written notice of the alleged defect, and that it did not
create the alleged defect (see Loghry v Village of
Scarsdale, 149 A.D.3d 714, 715; Beiner v Village of
Scarsdale, 149 A.D.3d at 680; McManus v Klein,
136 A.D.3d 700, 701; Lima v Village of Garden City,
131 A.D.3d 947, 948; Steins v Incorporated Vil. of Garden
City, 127 A.D.3d 957, 958).
the City demonstrated that it did not receive prior written
notice of the allegedly dangerous condition of the sidewalk,
it failed to establish, prima facie, that it did not create
the allegedly dangerous condition. The City's evidentiary
submissions failed to eliminate triable issues of fact as to
whether its work on the sidewalk immediately left it in a
condition that was dangerous to pedestrians and bicyclists
(see Kiernan v Thompson,73 N.Y.2d 840, 841-842;
Lewak v Town of Hempstead,147 A.D.3d 919, 920;
Kelley v Incorporated Vil. of Hempstead, 138 A.D.3d
931, 933; Monaco v Hodosky,127 A.D.3d 705, 707;
cf. Yarborough v City of New York, 10 N.Y.3d at
728). Since the City did not establish its prima facie
entitlement to judgment as a matter of law, the burden never
shifted to the plaintiff to submit evidence sufficient to
raise a triable issue of fact (see Wineg ...