| Gill v Town of N. Hempstead |
| 2011 NY Slip Op 03027 [83 AD3d 777] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Timothy Gill, Respondent, v Town of North Hempstead,Appellant, et al., Defendants. |
—[*1] Ferro, Kuba, Mangano, Skylar, P.C., Hauppauge, N.Y. (Kenneth E. Mangano and Rebecca J.Fortney of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Town of NorthHempstead appeals from so much of an order of the Supreme Court, Nassau County (Martin, J.),entered December 23, 2009, as denied that branch of its motion which was for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendant Town of North Hempstead which was for summaryjudgment dismissing the complaint insofar as asserted against it is granted.
On May 14, 2007, the plaintiff allegedly was injured while watching his son play baseball atthe Sagamore Avenue Ballfield, in Mineola (hereinafter the ballfield), which was maintained bythe defendant Town of North Hempstead, when he stepped into a hole containing a water mainvalve. The plaintiff alleged that the cover to the water main was unsecured and either slid offwhen he stepped on it or was not covering the hole completely.
To demonstrate prima facie entitlement to judgment as a matter of law in a slip-and-fall case,a defendant must establish that it did not create the condition that allegedly caused the fall orhave actual or constructive notice of that condition for a sufficient length of time to discover andremedy it (see Molloy v Waldbaum,Inc., 72 AD3d 659 [2010]; Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634,636 [2010]; Starling v Suffolk CountyWater Auth., 63 AD3d 822, 823 [2009]).
Here, the Supreme Court improperly determined that the Town failed to meet its burden ofestablishing its prima facie entitlement to judgment as a matter of law (see Gordon vAmerican Museum of Natural History, 67 NY2d 836, 837 [1986]; Starling v Suffolk County Water Auth.,63 AD3d 822 [2009]; Iannuzzi vTown of Wallkill, 54 AD3d 812, 813 [2008]; Applegate v Long Is. Power Auth., 53 AD3d 515, 516 [2008];see also Byrd v State of New York, 206 AD2d 449, 450 [1994]). In support of its motion,the Town submitted copies of its records, in addition to deposition testimony and an affidavitfrom one of its groundskeepers, establishing that the Town's employees performed maintenanceat the ballfield on [*2]the morning of May 14, 2007, the date ofthe accident, in the area where the accident occurred, and did not either create or observe thecondition that allegedly caused the plaintiff's fall later that day. Therefore, the Town established,prima facie, that the alleged dangerous condition did not exist at the time that its groundskeeperwas at the ballfield on the morning of the plaintiff's accident. In addition, the Town submitted anaffidavit from Gerard R. Olsen, the Commissioner of its Department of Parks and Recreation,establishing that the Town received no complaints concerning the ballfield for the three-yearperiod preceding the accident. Accordingly, the Town established its prima facie entitlement tojudgment as a matter of law since it did not create or have actual or constructive notice of thealleged dangerous condition (see Saggiov Town of Islip, 78 AD3d 922 [2010]; Starling v Suffolk County Water Auth.,63 AD3d at 822; Iannuzzi v Town of Wallkill, 54 AD3d at 813; Applegate v Long Is.Power Auth., 53 AD3d at 516; see also Byrd v State of New York, 206 AD2d at450).
In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Towncreated or had actual or constructive notice of the condition that caused his fall (see Saggio vTown of Islip, 78 AD3d at 922; Starling v Suffolk County Water Auth., 63 AD3d at822; Iannuzzi v Town of Wallkill, 54 AD3d at 813; Applegate v Long Is. PowerAuth., 53 AD3d at 516).
Accordingly, the Supreme Court improperly denied that branch of the Town's motion whichwas for summary judgment dismissing the complaint insofar as asserted against it. Skelos, J.P.,Covello, Balkin and Austin, JJ., concur. [Prior Case History: 2009 NY Slip Op33152(U).]