| Velho v Village of Sleepy Hollow |
| 2014 NY Slip Op 04916 [119 AD3d 551] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Italina Velho, Respondent, v Village of SleepyHollow, Appellant, and Elizabeth Goyzueta et al., Respondents. |
Henderson & Brennan (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis& Fishlinger, Uniondale, N.Y. [Christine Gasser], of counsel), for appellant.
Mark Edward Goldberg (Bornstein & Emanuel, P.C., Garden City, N.Y. [JamesM. Sheridan, Jr.], of counsel), for plaintiff-respondent.
Penino & Moynihan, LLP, White Plains, N.Y. (Henry L. Liao of counsel), fordefendants-respondents.
In an action to recover damages for personal injuries, the defendant Village of SleepyHollow appeals from an order of the Supreme Court, Westchester County (Giacomo, J.),entered July 3, 2013, which denied its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it and granted the cross motionof the defendants Elizabeth Goyzueta and Juan Antonio Mora for summary judgment ontheir cross claim for indemnification.
Ordered that the order is reversed, on the law, with one bill of costs payable by therespondents appearing separately and filing separate briefs, the motion of the defendantVillage of Sleepy Hollow for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it is granted, and the cross motion of the defendantsElizabeth Goyzueta and Juan Antonio Mora for summary judgment on their cross claimfor indemnification is denied.
On June 21, 2010, the plaintiff allegedly sustained personal injuries when she trippedand fell on a sidewalk in the Village of Sleepy Hollow that had been raised by the rootsof a curbside tree. Prior to the accident, on January 12, 2010, one of the abuttinghomeowners, the defendant Elizabeth Goyzueta, went to the Village office that acceptspayment for water bills and taxes, and made a verbal complaint that the roots of theabutting tree were lifting the sidewalk abutting her property. Her verbal complaint wasreduced to a writing in the form of an application for a tree removal permit. By letterdated January 21, 2010, the Village Architect informed Goyzueta that the tree would notbe removed but that the Village would repair the sidewalk. The sidewalk was notrepaired prior to the accident.
The plaintiff commenced this action against the Village, which owned the tree, andthe abutting homeowners, Goyzueta and Juan Antonio Mora (hereinafter together thehomeowners). The Village moved for summary judgment dismissing the complaint andall cross claims insofar as asserted against it, contending that it could not be held liablefor the plaintiff's injuries since it did [*2]not have priorwritten notice of the alleged hazardous condition. The homeowners cross-moved forsummary judgment on their cross claim for indemnification. The Supreme Court deniedthe Village's motion and granted the homeowners' cross motion.
The Village established its prima facie entitlement to judgment as a matter of law bysubmitting, inter alia, the affidavit of its Village Clerk, who averred that her search of theVillage's records revealed no prior written notice of any hazardous condition on thesidewalk where the accident occurred (see Gorman v Town of Huntington, 12 NY3d 275, 280[2009]; Amabile v City of Buffalo, 93 NY2d 471 [1999]; Spanos v Town of Clarkstown,81 AD3d 711, 712 [2011]; LiFrieri v Town of Smithtown, 72 AD3d 750, 752 [2010];Scafidi v Town of Islip, 34AD3d 669 [2006]). In opposition, the plaintiff and the homeowners failed to raise atriable issue of fact. Their submissions failed to show that the Village affirmativelycreated the alleged hazardous condition (see Oswald v City of Niagara Falls, 13 AD3d 1155, 1156[2004]; Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d 725, 726[2003]; Michela v County of Nassau, 176 AD2d 707, 708 [1991]), or caused thealleged hazardous condition to occur by its special use of the sidewalk (see Romano v Leger, 72 AD3d1059, 1059-1060 [2010]; Harvey v Monteforte, 292 AD2d 420, 421 [2002];Gomez v City of New York, 238 AD2d 472 [1997]). Actual notice of the allegedhazardous condition does not override the statutory requirement of prior written notice ofa sidewalk defect (see Chirco vCity of Long Beach, 106 AD3d 941, 943 [2013]; McCarthy v City of WhitePlains, 54 AD3d 828, 830 [2008]; Ferreira v County of Orange, 34 AD3d 724, 725 [2006]; Braun v Village of New Sq., 3AD3d 513, 514 [2004]).
Accordingly, the Supreme Court should have granted the Village's motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst it and denied the homeowners' cross motion for summary judgment on their crossclaim for indemnification. Balkin, J.P., Chambers, Cohen and Duffy, JJ., concur.