| Lagrasta v Town of Oyster Bay |
| 2011 NY Slip Op 07008 [88 AD3d 658] |
| October 4, 2011 |
| Appellate Division, Second Department |
| Michael Lagrasta, Appellant, v Town of Oyster Bay,Respondent. |
—[*1] Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an orderof the Supreme Court, Nassau County (McCarty III, J.), entered March 18, 2010, which grantedthe defendant's motion for summary judgment dismissing the complaint, and (2) a judgment ofthe same court entered July 16, 2010, which, upon the order, is in favor of the defendant andagainst him dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the complaint is reinstated, the defendant'smotion for summary judgment dismissing the complaint is denied, and the order is modifiedaccordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [c]).
The plaintiff owned a boat that he docked at a marina owned, operated, and maintained bythe defendant, Town of Oyster Bay. On August 21, 2006, the plaintiff allegedly was walking on afloating wooden dock at the marina to access his boat when he tripped and fell over a raisedportion of the dock at slip 15. The plaintiff subsequently commenced this action to recover [*2]damages for personal injuries allegedly sustained as a result of thefall. The Supreme Court granted the Town's motion for summary judgment dismissing thecomplaint. We reverse.
The Town failed to meet its prima facie burden of showing that it is entitled to judgment as amatter of law. Contrary to the Town's contention and the conclusion of the Supreme Court, theaction is not subject to dismissal on the ground that the Town lacked prior written notice of thealleged defective condition. Prior written notice laws are in derogation of the common law andmust be strictly construed (see Gormanv Town of Huntington, 12 NY3d 275, 279 [2009]; Selca v City of Peekskill, 78 AD3d 1160, 1161 [2010]). Here, thelocation of the accident does not fall within the ambit of the Town's prior written notice statute,which applies to alleged defects on any "street, highway, bridge, culvert, sidewalk or crosswalk"(Code of Town of Oyster Bay § 160-1 [A]; see Selca v City of Peekskill, 78 AD3dat 1161; cf. Englehardt v Town of Hempstead, 141 AD2d 601, 602 [1988]).
Also contrary to the Town's contention and the conclusion of the Supreme Court, the Townfailed to make a prima facie showing that it did not create or have actual or constructive notice ofthe alleged defective condition (seeVillano v Strathmore Terrace Homeowners Assn., Inc., 76 AD3d 1061 [2010]; Molloy v Waldbaum, Inc., 72 AD3d659, 659-660 [2010]; Gradwohl vStop & Shop Supermarket Co., LLC, 70 AD3d 634, 636 [2010]). In support of itsmotion, the Town submitted the deposition testimony of Salvatore Cornicelli, the manager of themarina at the time the accident occurred. During Cornicelli's testimony, it was elicited that, inJune 2006, notations were made in the marina's boat check inspection reports indicating thatthere was a raised board at slip 14 and slip 15. Cornicelli testified, when questioned about thesenotations, that this meant that there were one or two raised boards that needed replacing in thearea.
Finally, contrary to the Town's contention, the evidence submitted by the Town, includingphotographs and the plaintiff's deposition testimony, was insufficient to demonstrate, prima facie,that the alleged defect was trivial and, therefore, not actionable (see Trincere v County ofSuffolk, 90 NY2d 976, 977 [1997]; Araujo v City of New York, 84 AD3d 993, 994 [2011]; Bolloli v Waldbaum, Inc., 71 AD3d618, 619 [2010]).
Accordingly, the Supreme Court should have denied the Town's motion for summaryjudgment dismissing the complaint, regardless of the sufficiency of the plaintiff's papers inopposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Skelos, J.P.,Dickerson, Leventhal and Lott, JJ., concur.