| Spindell v Town of Hempstead |
| 2012 NY Slip Op 00951 [92 AD3d 669] |
| February 7, 2012 |
| Appellate Division, Second Department |
| Deric Spindell, Respondent, v Town of Hempstead et al.,Appellants. |
—[*1] Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin J. Bryant of counsel), for appellantScheurer Monuments, Inc. Leav & Steinberg, LLP, New York, N.Y. (Daniela F. Henriques of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Scheurer Monuments,Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, NassauCounty (Sher, J.), entered September 30, 2010, as denied its motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it, and the defendantTown of Hempstead separately appeals, as limited by its brief, from so much of the same order asdenied its cross motion for summary judgment, in effect, dismissing the complaint and all crossclaims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from by the defendant ScheurerMonuments, Inc.; and it is further,
Ordered that the order is reversed insofar as appealed from by the defendant Town ofHempstead, on the law, and the cross motion of the defendant Town of Hempstead for summaryjudgment, in effect, dismissing the complaint and all cross claims insofar as asserted against it isgranted; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the defendant ScheurerMonuments, Inc., and one bill of costs is awarded to the defendant Town of Hempstead, payableby the plaintiff.
The plaintiff allegedly sustained injuries when he leaned against a large granite monument,erected in a public park owned by the defendant Town of Hempstead, and the monument felltowards him, landing on his foot. The monument was purchased by a nonparty from thedefendant Scheurer Monuments, Inc. (hereinafter Scheurer), and was installed, at the nonparty's[*2]direction, by Scheurer.
The plaintiff commenced this action to recover damages for personal injuries againstScheurer and the Town. Scheurer moved for summary judgment dismissing the complaint and allcross claims insofar as asserted against it, and the Town cross-moved for summary judgment, ineffect, dismissing the complaint and all cross claims insofar as asserted against it. The SupremeCourt denied the motion and the cross motion.
Scheurer failed to demonstrate its prima facie entitlement to judgment as a matter of law(see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Contrary to Scheurer'scontention, it did not tender sufficient evidence to demonstrate the absence of any material issuesof fact as to whether it failed to exercise reasonable care in the installation of the subjectmonument, as is alleged in the complaint, and by that failure, launched a force or instrument ofharm, thereby potentially subjecting it to liability for the plaintiff's injuries (see Espinal vMelville Snow Contrs., 98 NY2d 136, 138-142 [2002]).
The Town, however, demonstrated its prima facie entitlement to judgment as a matter of lawon the ground that it neither created nor had actual or constructive notice of the allegeddangerous condition. "In order for a landowner to be liable in tort to a plaintiff who is injured asa result of an allegedly defective condition upon property, it must be established that. . . the landowner affirmatively created the condition or had actual or constructivenotice of its existence" (Lezama v 34-15Parsons Blvd, LLC, 16 AD3d 560, 560 [2005]; see Walsh v Super Value, Inc., 76 AD3d 371, 375 [2010]; Fontana v R.H.C. Dev., LLC, 69 AD3d561 [2010]; Bodden v MayfairSupermarkets, 6 AD3d 372, 373 [2004]). To provide constructive notice, "a defect mustbe visible and apparent and it must exist for a sufficient length of time prior to theaccident to permit defendant's employees to discover and remedy it" (Gordon v AmericanMuseum of Natural History, 67 NY2d 836, 837 [1986] [emphasis added]; see Leary v Leisure Glen Home OwnersAssn., Inc., 82 AD3d 1169 [2011]; Williams v SNS Realty of Long Is., Inc., 70 AD3d 1034, 1035[2010]; Dennehy-Murphy v Nor-TopiaServ. Ctr., Inc., 61 AD3d 629 [2009]). "When a defect is latent and would not bediscoverable upon a reasonable inspection, constructive notice may not be imputed" (Applegate v Long Is. Power Auth., 53AD3d 515, 516 [2008]; seeMcMahon v Gold, 78 AD3d 908, 909 [2010]; Lal v Ching Po Ng, 33 AD3d 668 [2006]; Curiale v Sharrotts Woods, Inc., 9AD3d 473, 475 [2004]; Lee v Bethel First Pentecostal Church of Am., 304 AD2d798, 800 [2003]).
The Town demonstrated, prima facie, that it did not create the alleged dangerous condition,consisting of the instability of the monument, through evidence that it did not have any role inconstructing or installing the monument, and also demonstrated, prima facie, that it did not haveactual notice of the alleged dangerous condition.
The Town further demonstrated, prima facie, that it did not have constructive notice of thealleged dangerous condition of the monument. Both the plaintiff and the Town's witness testified,at their respective depositions, that prior to the accident, the monument appeared to be stable andlevel, and was not listing or leaning in any manner. Thus, the alleged dangerous condition wasnot visible and apparent; nor was it discoverable, upon a reasonable inspection, that theapproximately 1,700-pound monument allegedly was not properly mounted on its pedestal(see McMahon v Gold, 78 AD3d at 909; Applegate v Long Is. Power Auth., 53AD3d at 516; Scoppettone v ADJHolding Corp., 41 AD3d 693, 694-695 [2007]; Lal v Ching Po Ng, 33 AD3d at668; Curiale v Sharrotts Woods, Inc., 9 AD3d at 475; Lee v Bethel First PentecostalChurch of Am., 304 AD2d at 800). Under the circumstances of this case, no more than thevisual observations made by the supervisor of the Town's Parks Department when he cleaned themonument could reasonably be required of the Town (see Scoppettone v ADJ HoldingCorp., 41 AD3d at 695).
In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff'scontention, constructive notice of the instability of the approximately 1,700-pound monumentcannot be imputed to the Town solely based upon its alleged knowledge that childrencongregated in the area and might have put their feet on the monument.
The parties' remaining contentions are without merit.[*3]
Accordingly, Scheurer's motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it was properly denied,and the Town's cross motion for summary judgment, in effect, dismissing the complaint and allcross claims insofar as asserted against it should have been granted. Skelos, J.P., Hall, Lott andCohen, JJ., concur. [Prior Case History: 2010 NY Slip Op 32734(U).]