| Sachs v County of Nassau |
| 2009 NY Slip Op 02582 [60 AD3d 1032] |
| March 31, 2009 |
| Appellate Division, Second Department |
| Rolf Sachs, Respondent-Appellant, v County of Nassau,Respondent, and Petrina DeLuca, Appellant-Respondent. (And a Third-PartyAction.) |
—[*1] Kaplan & Kaplan P.C. (Lisa M. Comeau, Garden City, N.Y. [Arnold DiJoseph], of counsel),for respondent-appellant. Lorna B. Goodman, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel), forrespondent.
In an action to recover damages for personal injuries and wrongful death, the defendantPetrina DeLuca appeals from so much of an order of the Supreme Court, Nassau County(O'Connell, J.), entered December 19, 2007, as denied her motion for summary judgmentdismissing the complaint insofar as asserted against her, and the plaintiffs cross-appeal from somuch of the same order as granted the motion of the defendant County of Nassau for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with one bill of costs to the plaintiff payable by thedefendant Petrina DeLuca and one bill of costs to the defendant County of Nassau payable by theplaintiff.
The decedent allegedly sustained injuries when his wheelchair hit a raised portion of asidewalk. The sidewalk abutted a road owned by the County of Nassau and was adjacent toproperty owned by the defendant Petrina DeLuca. The plaintiffs commenced this action againstthe County and DeLuca, alleging that both defendants were negligent in repairing or failing torepair the [*2]defective sidewalk. The County moved forsummary judgment dismissing the complaint insofar as asserted against it, contending that it didnot receive the statutorily-required written notice of the defective condition. DeLuca also movedfor summary judgment dismissing the complaint insofar as asserted against her. The SupremeCourt granted the County's motion and denied DeLuca's motion. We affirm.
Generally, liability for injuries sustained as a result of dangerous and defective conditions onpublic sidewalks is placed on the municipality and not the abutting landowner (see Hausser vGiunta, 88 NY2d 449, 452-453 [1996]; Bruno v City of New York, 36 AD3d 640[2007]). However, an abutting landowner will be liable where the landowner negligentlyconstructed or repaired the sidewalk, caused the defect to occur by some special use of thesidewalk, or breached a specific ordinance or statute which obligates the owner to maintain thesidewalk and provides that a breach of that duty will result in liability (see Hausser v Giunta,88 NY2d 449, 453 [1996]; Sverdlin v Gruber, 289 AD2d 475, 476 [2001]). Here,Town of Oyster Bay Code § 205-2 imposes tort liability on each owner and occupant ofany house or other building in the Town for failing to make or negligently making a repair orperforming maintenance on abutting sidewalks. Since the Town Code specifically obligates theowner to maintain the sidewalk and imposes liability for a breach of that duty, DeLuca failed toestablish her entitlement to judgment as a matter of law. Thus, the Supreme Court properlydenied DeLuca's motion for summary judgment dismissing the complaint insofar as assertedagainst her.
Nassau County Administrative Code § 12-4.0 (e) requires prior written notice of adefective sidewalk in order to maintain an action against the County. The County established itsentitlement to judgment as a matter of law by proffering deposition testimony by a Countyemployee and an affidavit by another employee that they did not find any record of prior writtennotice (cf. McCarthy v City of White Plains, 54 AD3d 828 [2008]). Contrary to theplaintiff's contention, the County is not estopped from asserting the defense of no prior writtennotice (see Gorman v Town of Huntington, 47 AD3d 30 [2007]). Nor did the plaintiffsraise a triable issue of fact that the County created the defect in the sidewalk (see Trinidad vCity of Mount Vernon, 51 AD3d 661 [2008]). Accordingly, the Supreme Court properlygranted the County's motion for summary judgment dismissing the complaint insofar as assertedagainst it. Fisher, J.P., Florio, Dickerson and Belen, JJ., concur. [See 2007 NY Slip Op34149(U).]