| Seelinger v Town of Middletown |
| 2010 NY Slip Op 08836 [79 AD3d 1227] |
| December 2, 2010 |
| Appellate Division, Third Department |
| Charles Seelinger et al., Appellants, v Town of Middletown,Respondent. |
—[*1] Shantz & Belkin, Latham (M. Randolph Belkin of counsel), for respondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), enteredSeptember 9, 2009 in Delaware County, which, among other things, granted defendant's motion forsummary judgment dismissing the complaint.
Desiring to dispose of three old wall heaters, each of which weighed several hundred pounds,plaintiff Charles Seelinger (hereinafter plaintiff) and a friend loaded them into a pickup truck and droveto defendant's waste transfer station where they were directed by an employee to place them in adumpster, which sat in a below-grade pit. After backing up to a short curb-like abutment thatsurrounded the pit, plaintiff and his friend slid the first heater off the back of the truck, causing it to dropinto the dumpster. As plaintiff and his friend were in the process of unloading the second heater, plaintifffell into the pit between the concrete abutment and the dumpster, sustaining injuries.
Plaintiff and his wife, derivatively, commenced this action against defendant alleging that plaintiff'sinjuries were caused by the negligence of defendant in maintaining the concrete abutment thatsurrounded the pit. Following joinder of issue, but prior to discovery, defendant moved for summaryjudgment dismissing the complaint contending, among other things, that it had no prior written notice ofany alleged defect as required by both Town Law § 65-a and Local Law No. 1 (2004) of Townof Middletown, plaintiffs failed to raise an issue of fact as to [*2]defendant's alleged affirmative negligence, and plaintiff is unable toidentify the cause of his fall. Plaintiffs thereafter cross-moved for leave to file an amended complaint.Supreme Court granted defendant's motion and denied plaintiffs' cross motion. Plaintiffs now appeal.
Turning first to the prior written notice issue, "a plaintiff may not bring a civil action against amunicipality for damages as the result of an injury sustained by reason of a defective street, highway,bridge, culvert, sidewalk or crosswalk unless prior written notice of the allegedly defective conditionhas been given" (Smith v Village ofHancock, 25 AD3d 975, 975 [2006]; see General Municipal Law § 50-e [4];Town Law § 65-a). Since defendant asserts that it received no prior written notice of a defectivecondition at the site of plaintiff's fall, and plaintiff does not allege that he gave such notice, the operativequestion becomes whether defendant's waste transfer station falls within the category of locationsenvisioned by Town Law § 65-a.
The prior written notice requirement of Town Law § 65-a extends not only to those namedsites, but also to "any site that shares the same 'functional purpose' as the types of areas explicitlyenumerated" (Smith v Village of Hancock, 25 AD3d at 976). Defendant argued, and SupremeCourt accepted, that the waste transfer site was a parking lot that, in turn, was a highway within themeaning of Town Law § 65-a.
While we agree that it is well established that a municipal parking lot may be considered a"highway" for the purposes of General Municipal Law § 50-e (see Smith v Village ofHancock, 25 AD3d at 976; Lauria v City of New Rochelle, 225 AD2d 1013, 1014[1996]), whether a given municipal property is a parking lot in the first place will depend on afact-based inquiry into its individual characteristics (see generally Smith v Village of Hancock,25 AD3d at 976-977; Staudinger v Village of Granville, 304 AD2d 929, 929-930 [2003]).The affidavit of the Town Clerk submitted in support of defendant's motion simply confirmed that noprior written notice of a defective condition had been received by his office for this site, and no otheraffidavit or proof was submitted by defendant concerning the physical layout or characteristics of thesite to allow Supreme Court to properly determine whether it functionally served the same purpose as aparking lot. Accordingly, we find that Supreme Court erred in finding, as a matter of law, that thetransfer station where plaintiff fell was itself a parking lot.
We further find that Supreme Court erred in granting defendant's motion for summary judgmentbased on plaintiff's inability to identify the cause of his fall. Although "[m]ere conclusions based uponsurmise, conjecture, speculation or assertions are without probative value" (Maiorano v PriceChopper Operating Co., 221 AD2d 698, 699 [1995]; see Smith v J.B.H., Inc., 300AD2d 874, 875 [2002]; Dapp v Larson, 240 AD2d 918, 919 [1997]), a case of negligencebased wholly on circumstantial evidence may be established if the plaintiffs " 'show[ ] facts andconditions from which the negligence of the defendant and the causation of the accident by thatnegligence may be reasonably inferred' " (Schneider v Kings Hwy. Hosp. Ctr., 67 NY2d 743,744 [1986], quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; see Timmins v Benjamin, 77 AD3d1254, 1256 [2010]; DiBartolomeo v St.Peter's Hosp. of the City of Albany, 73 AD3d 1326, 1327 [2010]). Here, while there wereno witnesses to the accident and plaintiff testified that he did not know what caused him to fall, in anaffidavit submitted in opposition to defendant's motion, plaintiff clarifies, not inconsistent with his priorGeneral Municipal Law § 50-h testimony (see O'Leary v Saugerties Cent. School Dist.,277 AD2d 662, 663 [2000]), that prior to the fall, he was standing next to the broken concreteabutment. After he fell, plaintiff landed between the concrete abutment and the dumpster "at the exactarea where the concrete wall was broken and missing." Photographs of the concrete [*3]abutment depict a broken and deteriorated condition where plaintiffwould have been standing. From this evidence, a jury could logically infer that plaintiff fell because ofthe broken condition of the concrete abutment, and his failure to identify the cause of his fall was notfatal to his claim (see Timmins v Benjamin, 77 AD3d at 1256; Macri v Smith, 12 AD3d 896,897-898 [2004]). Finally, in light of our determination, plaintiffs' cross motion seeking leave to amendthe complaint is not moot, and we therefore remit the matter to Supreme Court for a determination onsaid cross motion (see Ruthosky v John Deere Co., 235 AD2d 620, 623 [1997]).
Mercure, J.P., Peters, Rose and Malone Jr., JJ., concur. Ordered that the order is modified, on thelaw, with costs to plaintiffs, by reversing so much thereof as granted defendant's motion for summaryjudgment; said motion denied and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision; and, as so modified, affirmed.