| Keating v Town of Burke |
| 2011 NY Slip Op 05824 [86 AD3d 660] |
| July 7, 2011 |
| Appellate Division, Third Department |
| Mary E. Keating, Appellant, v Town of Burke et al.,Respondents. |
—[*1] Fischer, Bessette, Muldowney & Hunter, L.L.P., Malone (Matthew H. McArdle of counsel),for Town of Burke, respondent. Taddeo & Shahan, Syracuse (Anna C. O'Neil of counsel), for Burke Volunteer FireDepartment, Inc., respondent.
Mercure, J.P. Appeal from an order of the Supreme Court (Demarest, J.), entered January 19,2010 in Franklin County, which granted defendants' motions for summary judgment dismissingthe complaint.
In July 2005, plaintiff attended an event sponsored by defendant Burke Volunteer FireDepartment, Inc. (hereinafter BVFD) and held at a park owned by defendant Town of Burke. Asshe was placing her chair to watch an outdoor auction, plaintiff was struck and injured by a deadbranch that had broken off from an overhanging tree. She filed a notice of claim andsubsequently commenced this action against defendants alleging, among other things, that theyhad negligently inspected and maintained the tree in question. Following joinder of issue,defendants separately moved for summary judgment. Supreme Court granted the motions, andplaintiff now appeals.
In order to succeed on a negligence claim, a plaintiff must ultimately "demonstrate (1) a dutyowed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resultingtherefrom" (Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). Initially, wenote that it is undisputed that the Town owned the park. Inasmuch as there is no evidence [*2]showing that BVFD had "a contractual obligation to keep the landfree from dangerous conditions," the duties of a landowner cannot be imposed upon it (Rosen v Long Is. Greenbelt TrailConference, Inc., 19 AD3d 400, 401 [2005], lv denied 6 NY3d 703 [2006];see Nielsen v Town of Amherst, 193 AD2d 1073, 1074 [1993]; cf. Katz v Queens Theater in the Park,27 AD3d 623, 623-624 [2006]). Plaintiff contends, however, that BVFD owed a duty to hergiven its allegedly negligent misrepresentation of the site's safety to the auctioneer.
Assuming that BVFD owed any such duty, it would be breached only if BVFD failed to usereasonable care in conveying information upon which plaintiff detrimentally relied, such aswhere "one familiar with a hazard offers direct assurances of safety to one who is unfamiliar withthe hazard and who foreseeably relies upon those assurances" (Heard v City of NewYork, 82 NY2d 66, 74 [1993]; see International Prods. Co. v Erie R.R. Co., 244 NY331, 337-338 [1927], cert denied 275 US 527 [1927]). There is no indication thatBVFD's representative made any such assurances; rather, he merely advised the auctioneer as towhere the auction should be held. Furthermore, there is no evidence that the representativeinspected the tree or otherwise possessed exclusive knowledge of its condition. Indeed, plaintiffdoes not claim that she even knew of the representative's direction at the time she placed herchair and, under these circumstances, she is unable to establish detrimental reliance (seeHeard v City of New York, 82 NY2d at 74-75; Ward v Edinburg Mar., 293 AD2d887, 889 [2002]; see also Webb v Cerasoli, 275 App Div 45, 48-49 [1949], affd300 NY 603 [1949]). Accordingly, Supreme Court properly granted BVFD's motion for summaryjudgment.
The Town, in contrast, owned the park and was duty-bound to maintain it in a reasonablysafe condition (see Rhabb v New York City Hous. Auth., 41 NY2d 200, 202 [1976]; Gagnon v City of Saratoga Springs, 51AD3d 1096, 1098 [2008], lv denied 11 NY3d 706 [2008]). As a result, the Townwas "required to establish as a matter of law that [it] maintained the property in question in areasonably safe condition and that [it] neither created the allegedly dangerous condition existingthereon nor had actual or constructive notice thereof" in order to succeed on its summaryjudgment motion (Richardson v Rotterdam Sq. Mall, 289 AD2d 679, 679 [2001]; accord Norse v Saratoga Harness Racing,Inc., 81 AD3d 1063, 1063-1064 [2011]). Notably, the proof submitted by the Town onits motion was largely limited to an attorney's affirmation, the pleadings, and plaintiff'sstatements regarding the accident. These submissions did not demonstrate "that a reasonableinspection would [not] have revealed the alleged dangerous or defective condition of the tree"such as to establish prima facie entitlement to summary judgment, particularly in light ofplaintiff's description—proffered by the Town—of how the accident occurred (Michaels v Park Shore Realty Corp.,55 AD3d 802, 802 [2008]; seeGodfrey v Town of Hurley, 68 AD3d 1527, 1527-1528 [2009]; cf. Ivancic vOlmstead, 66 NY2d 349, 351-352 [1985], cert denied 476 US 1117 [1986]).Additionally, the Town wholly failed to explain its inspection procedures regarding trees at thepark and, as such, did not show in the first instance that it maintained the park in a reasonablysafe condition (see Rhabb v New York City Hous. Auth., 41 NY2d at 202; Norse vSaratoga Harness Racing, Inc., 81 AD3d at 1064; cf. Fowle v State of New York,187 AD2d 698, 699 [1992]). The Town, thus, failed to tender sufficient evidence to eliminateany material questions of fact and, accordingly, denial of its motion was required "regardless ofthe sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]; see Kropp vCorning, Inc., 69 AD3d 1211, 1213 [2010]).
Spain, Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as granted the motion of defendant Town ofBurke for summary judgment; said motion denied; and, as so modified, affirmed.