| Holmes v Town of Oyster Bay |
| 2011 NY Slip Op 02353 [82 AD3d 1047] |
| March 22, 2011 |
| Appellate Division, Second Department |
| Elizabeth Holmes, Appellant, v Town of Oyster Bay et al.,Respondents, et al., Defendants. |
—[*1] Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), forrespondent Town of Oyster Bay. Epstein Frankini & Grammatico, Woodbury, N.Y. (Russell M. Plotkin of counsel), forrespondent DataPlus Management, LLC.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), entered June22, 2009, as granted the renewed motion of the defendant Town of Oyster Bay and that branch ofthe renewed cross motion of the defendant DataPlus Management, LLC, which was for summaryjudgment dismissing the complaint insofar as asserted against each of them, and denied her crossmotion for leave to serve a supplemental bill of particulars.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
The plaintiff allegedly sustained injuries when she tripped on a tree stump in a tree welllocated in a utility strip, which ran parallel to a sidewalk in the Town of Oyster Bay, abutting theproperty of the defendant DataPlus Management, LLC (hereinafter DataPlus).
DataPlus met its prima facie burden of demonstrating its entitlement to judgment as a matterof law. An adjoining landowner may be liable for injuries caused by a sidewalk defect onlywhere it affirmatively created the dangerous condition, negligently made repairs to the area,caused the dangerous condition to occur through a special use of the area, or violated a statutewhich expressly imposes liability on the property owner for failure to maintain the abuttingsidewalk (see Vucetovic v EpsomDowns, Inc., 10 NY3d 517, 520 [2008]; Hausser v Giunta, 88 NY2d 449, 453[1996]; Grier v 35-63 Realty, Inc.,70 AD3d 772, 773 [2010]).
Although Code of Town of Oyster Bay § 205-2 imposes a duty on landowners tomaintain the sidewalk abutting their properties in good and safe repair and free fromobstructions, this duty did not extend to the subject tree well, located in the utility strip (seeVucetovic v Epsom Downs, Inc., 10 NY3d at 520; Grier v 35-63 Realty, Inc., 70 AD3d 772 [2010]; Smirnova v City of New York, 64AD3d 641, 642 [2009]; Hartofil vMcCourt & Trudden Funeral Home, Inc., 57 AD3d 943, 946 [2008]). Further, DataPlusestablished that it did not create the allegedly dangerous condition, that the condition was not theresult of its negligent repair, and that it did not make any special use of the subject area (see[*2]Grier v 35-63 Realty, Inc., 70 AD3d at 773; Smirnovav City of New York, 64 AD3d at 642). In opposition, the plaintiff failed to raise a triableissue of fact. Therefore, the Supreme Court properly granted that branch of DataPlus's renewedcross motion which was for summary judgment dismissing the complaint insofar as assertedagainst it.
The Town also demonstrated its prima facie entitlement to judgment as a matter of law.Where, as here, a municipality has enacted a prior written notice law (see Code of Townof Oyster Bay § 160-1), it cannot be held liable absent proof of the requisite notice or anexception to that requirement (see Amabile v City of Buffalo, 93 NY2d 471 [1999];Poirier v City of Schenectady, 85 NY2d 310 [1995]; Regan v Town of N. Hempstead, 66 AD3d 863, 864 [2009]). TheTown established that it did not have prior written notice of the alleged defect. In opposition, theplaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the area inwhich she fell was within the purview of the Town's prior written notice law (see Woodson vCity of New York, 93 NY2d 936, 937 [1999]; Mullen v Town of Hempstead, 66 AD3d 745 [2009]; seegenerally Amabile v City of Buffalo, 93 NY2d at 474; Doremus v Incorporated Vil. ofLynbrook, 18 NY2d 362, 366 [1966]), and the plaintiff does not assert that an exception tothe prior written notice requirement is applicable here (see Regan v Town of N. Hempstead, 66 AD3d 863 [2009]; Delgado v County of Suffolk, 40 AD3d575 [2007]). Accordingly, the Supreme Court properly granted the Town's renewed motionfor summary judgment dismissing the complaint insofar as asserted against it.
The Supreme Court properly denied the plaintiff's cross motion for leave to serve asupplemental bill of particulars, as the proposed amendment was patently lacking in merit(see Code of Town of Oyster Bay § 205-3; Gonzalez v Pon Lin Realty Corp., 34 AD3d 638, 639 [2006]).Skelos, J.P., Balkin, Austin and Sgroi, JJ., concur.