| Hook v Village of Ellenville |
| 2007 NY Slip Op 10457 [46 AD3d 1318] |
| December 27, 2007 |
| Appellate Division, Third Department |
| Amanda L. Hook, Respondent, v Village of Ellenville, Appellant, etal., Defendants. |
—[*1] Law Office of Edward J. Carroll, Kingston (Edward J. Carroll of counsel), forrespondent.
Carpinello, J. Appeal from an order of the Supreme Court (Bradley, J.), entered October 2,2006 in Ulster County, which, among other things, denied the motion of defendant Village ofEllenville for summary judgment dismissing the complaint against it.
One evening in September 2001, plaintiff was exiting a relative's residence when she injuredherself by tripping and falling on a cracked and uneven sidewalk owned by defendant Village ofEllenville. She thereafter commenced this action to recover for her injuries. The principal issueon this appeal from a denial of the Village's motion for summary judgment is whether plaintiffsubmitted sufficient evidence to create a question of fact as to whether the Village affirmativelycreated this defect since the requisite prior written notice of same was admittedly not provided(see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Stewart v Town ofWaterford, 152 AD2d 837, 839 [1989]).[FN*]Plaintiff attempted to prove the affirmative [*2]creation of adefective condition by the Village in two ways.
First, plaintiff argued that the area of the sidewalk where she fell was cracked and unevenbecause municipal vehicles had previously parked on it. In this regard, she relied on two separateaffidavits of a nonparty witness who formerly resided at the subject premises. The first affidavitpreceded this witness's deposition and the second followed it. In her first affidavit, this witnessaverred that municipal equipment was parked "on the very sidewalk" where plaintiff fell(emphasis added). Thereafter, however, she unequivocally testified at her deposition that shenever saw municipal trucks or equipment on the subject sidewalk. In the second subsequentaffidavit, she then "clarifies" that any municipal vehicles she may have observed during herperiod of residency were either within 20 feet of the subject sidewalk or parked "in front of" thepremises where plaintiff fell. Even disregarding her inconsistencies on this issue, we areunpersuaded that this nonparty witness's latest affidavit raised a question of fact concerningwhether the Village created the subject defect by parking any vehicle on the sidewalk.
Next, plaintiff proffered the affidavit of a licensed professional engineer who opined that theVillage's purported repair of one portion of the sidewalk without also repairing the area whereplaintiff fell created a dangerous condition. The problem with this opinion is twofold. First, theengineer has no knowledge as to when this alleged repair project took place or, most importantly,by whom. Additionally, he has no knowledge whether the cracked and uneven slabs whichcaused plaintiff's fall were in fact cracked and uneven at the time of this prior repair. Thus, hisopinion that an unsafe condition was created when certain slabs were replaced without replacingall slabs is based on pure conjecture. In any event, such a partial repair, even assuming it wasperformed by the Village, would have constituted an act of omission and not an affirmative act ofnegligence (see Lifer v City of Kingston, 295 AD2d 695, 696 [2002]). In the absence ofany credible evidence that the Village created the defective condition that caused plaintiff's fall,the Village's motion for summary judgment should have been granted.
Cardona, P.J., Mercure, Crew III and Lahtinen, JJ., concur. Ordered that the order ismodified, on the law, without costs, by reversing so much thereof as denied the motion ofdefendant Village of Ellenville; motion granted, summary judgment awarded to said defendantand complaint dismissed against it; and, as so modified, affirmed.
Footnote *: We reject plaintiff's contentionthat a prior order of Supreme Court denying an earlier motion for summary judgment is "law ofthe case," particularly in light of the subsequent deposition of a nonparty witness (see Moser v Devine Real Estate, Inc.[Florida], 42 AD3d 731, 733 [2007]; see also Siegel, NY Prac § 287, at470-471 [4th ed]).