| Noller v Peralta |
| 2012 NY Slip Op 02649 [94 AD3d 833] |
| April 10, 2012 |
| Appellate Division, Second Department |
| Lori Noller et al., Respondents, v Miguel Peralta et al.,Defendants, and Robert McCreanor et al., Appellants. |
—[*1] Finkelstein & Partners, LLP, Newburgh, N.Y. (George A. Kohl II of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendants Robert McCreanorand Barbara McCreanor appeal, as limited by their brief, from so much of an order of theSupreme Court, Orange County (Slobod, J.), dated March 25, 2011, as (a) granted that branch ofthe plaintiffs' motion which was for leave to reargue the plaintiffs' opposition to their priormotion for summary judgment dismissing the complaint insofar as asserted against them, whichhad been granted in an order of the same court dated January 20, 2011, and, upon reargument,vacated the original determination in the order dated January 20, 2011, and thereupon deniedtheir prior motion for summary judgment dismissing the complaint insofar as asserted againstthem, and (b) granted that branch of the plaintiffs' motion which was for leave to amend their billof particulars.
Ordered that the order dated March 25, 2011, is affirmed insofar as appealed from, withcosts.
The facts of this case are described in our decision and order on the companion appeals(see Noller v Peralta, 94 AD3d 830 [2012] [decided herewith]).
The Supreme Court did not improvidently exercise its discretion in granting that branch ofthe plaintiffs' motion which was for leave to reargue their opposition to the prior motion of thedefendants Robert McCreanor and Barbara McCreanor (hereinafter together the McCreanors) forsummary judgment dismissing the complaint insofar as asserted against them. In deciding theprior motion, the Supreme Court declined to consider the plaintiffs' contention, raised inopposition to the motion, that the McCreanors had violated a duty to the plaintiffs created by theCode of the Town of Cornwall § 158-14 (B) (1). The plaintiffs failed to allege in theircomplaint the violation of that duty and did not specify it in their bill of particulars. Nevertheless,the McCreanors were on notice from the commencement of the action that their liability waspredicated on the allegedly dangerous condition caused by their hedges in visually obstructingthe intersection, and they were aware no later than January 2010, eight months before they madetheir motion for summary judgment, that the ordinance would likely be asserted as a basis forliability. At a deposition of the Town's Building Inspector, the applicability of the ordinance wasraised (cf. [*2]Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys.,Inc., 15 AD3d 523, 524 [2005]). Consequently, the Supreme Court did notimprovidently exercise its discretion in granting leave to reargue to consider this contention,which was raised by the plaintiffs in their opposition to the McCreanors' prior summaryjudgment motion (see Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281 [1978];Gold Connection Discount Jewelers v American Dist. Tel. Co., 212 AD2d 577, 578[1995]; Ayala v V & O Press Co., 126 AD2d 229 [1987]; see generally 7-R3212Weinstein-Korn-Miller, NY Civ Prac ¶ 3212.10 [2012]; cf. Pinn v Baker's Variety, 32 AD3d463, 464 [2006]).
Upon reargument, the Supreme Court properly denied the McCreanors' motion for summaryjudgment dismissing the complaint insofar as asserted against them. A homeowner has no dutyunder the common law to prevent vegetation from creating a visual obstruction to users of apublic roadway, but a duty to such users may be created by statute or ordinance. A homeownermay then be held liable in tort for damages proximately caused by a violation of that duty (see Lubitz v Village of Scarsdale, 31AD3d 618, 620 [2006]).
Here, the McCreanors established their prima facie entitlement to judgment as a matter oflaw by submitting evidence that they did not violate a common-law duty to the plaintiffs by thealleged visual obstruction caused by the hedges on their property, and, in any event, that theplaintiffs' injuries were not caused by the alleged visual obstruction. In opposition, however, theplaintiffs raised triable issues of fact as to whether the McCreanors violated a duty created by theTown Code and as to whether such violation proximately caused damages (cf. Stukas v Streiter, 83 AD3d 18,30 [2011]). Code of the Town of Cornwall § 158-14 (B) provides that "[a]t all streetintersections in all districts, no obstructions to vision, including landscaping, exceeding 30 inchesin height above curb level shall be erected or maintained on any lot within the triangle formed bythe street lines of such lot and a line drawn between points along such street lines 30 feet distantfrom their point of intersection" (Code of Town of Cornwall § 158-14 [B] [1]). Thetestimony of both the injured plaintiff, Lori Noller, and the defendant Miguel Peralta created atriable issue of fact as to whether the McCreanors' hedges caused a visual obstruction in violationof Town Code § 158-14 (B) (1), and as to whether such alleged violation was a proximatecause of the subject accident.
The Supreme Court also properly granted that branch of the plaintiffs' motion which was forleave to amend their bill of particulars to specify the violation of the ordinance as a basis forliability (see Alvord & Swift v Muller Constr. Co., 46 NY2d at 281; Jara v New York Racing Assn., Inc., 85AD3d 1121, 1123 [2011]).
In light of our determination, we need not address the parties' remaining contentions (see generally Construction by Singletree,Inc. v Lowe, 55 AD3d 861 [2008]). Balkin, J.P., Eng, Hall and Sgroi, JJ., concur.