| Johnson v Braun |
| 2014 NY Slip Op 05955 [120 AD3d 765] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Denis Johnson, Respondent, v Emil Braun etal., Respondents-Appellants, and Town of East Hampton,Appellant-Respondent. |
Zaklukiewicz, Puzo & Morrissey, LLP (Congdon, Flaherty, O'Callaghan, Reid,Donlon, Travis & Fishlinger, Uniondale, N.Y. [Christine Gasser], of counsel), forappellant-respondent.
Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson of counsel), forrespondents-appellants.
Goggins & Palumbo, Mattituck, N.Y. (William C. Goggins of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Town of EastHampton appeals, as limited by its brief, from so much of an order of the Supreme Court,Suffolk County (Rebolini, J.), dated February 19, 2013, as denied its motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it, andthe defendants Emil Braun and Harley M. Braun cross-appeal, as limited by their brief,from so much of the same order as granted the plaintiff's cross motion for summaryjudgment against them on the issue of liability.
Ordered that the order is reversed insofar as appealed from, on the law, and themotion of the defendant Town of East Hampton for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it is granted; and it isfurther,
Ordered that the order is affirmed insofar as cross-appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the defendant Town of East Hampton,payable by the defendants Emil Braun and Harley M. Braun and the plaintiff DenisJohnson, appearing separately and filing separate briefs, and one bill of costs is awardedto the plaintiff Denis Johnson, payable by the defendants Emil Braun and Harley M.Braun.
On the evening of February 18, 2010, the plaintiff was a rear-seat passenger in avehicle owned by the defendant Emil Braun and driven by his daughter, Harley M. Braun(hereinafter the driver, and hereinafter together the Braun defendants), along a roadwaylocated in the defendant Town of East Hampton, when the driver lost control, causing thevehicle to strike a tree. The plaintiff commenced this action against the Braun defendantsand the Town to recover damages for injuries he allegedly sustained. The Supreme Courtdenied the Town's motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it and [*2]granted theplaintiff's cross motion for summary judgment on the issue of liability against the Braundefendants.
The Town established its prima facie entitlement to judgment as a matter of law bydemonstrating the enactment of the Town of East Hampton Code § 217-4, aprior written notice law, and submitting affidavits by the Deputy Town Clerk and itsDeputy Superintendent of Highways, who stated that their search of the Town's recordsrevealed no prior written notice of a defective condition in the roadway where theaccident occurred (see Town Law § 65-a [1]; Politis v Town of Islip, 82AD3d 1191, 1192 [2011]; Weinfeld v Roth Assoc., 177 AD2d 977, 978[1991]).
Contrary to the Supreme Court's determination, the plaintiff failed to raise a triableissue of fact as to whether an exception to the prior written noticerequirement—an affirmative act of negligence by the Town in creating orexacerbating a dangerous condition—applied here (see Amabile v City ofBuffalo, 93 NY2d 471, 474 [1999]; Politis v Town of Islip, 82 AD3d at1192). The plaintiff's opposition to the motion was premised on his theory that the driverlost control of the vehicle upon traveling over an improperly applied asphalt patch, whichcreated a dangerous condition, rather than as a result of a black ice condition coupledwith the driver's own negligence. The plaintiff's theory was speculative and insufficientto raise a triable issue of fact as to this exception to the prior written notice requirement(see Mallory v City of NewRochelle, 41 AD3d 556 [2007]). The plaintiff's deposition testimony, whichcontradicted his earlier testimony at the General Municipal Law § 50-hhearing, and attempted to raise a feigned factual issue, was insufficient to defeat themotion (see id. at 557). Additionally, the affidavit of the plaintiff's expert did notsupport plaintiff's theory, since it was based on speculation rather than record facts (see Urbano v Rockefeller Ctr. N.,Inc., 91 AD3d 549 [2012]).
Accordingly, the Supreme Court should have granted the Town's motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst it.
However, the Supreme Court correctly granted the plaintiff's cross motion forsummary judgment in his favor and against the Braun defendants on the issue of liability.The plaintiff made a prima facie showing of his entitlement to judgment as a matter oflaw by submitting evidence that this was a one-car accident that occurred when the driverlost control of the vehicle she was driving (see Mughal v Rajput, 106 AD3d 886, 888 [2013]). "Aninnocent passenger . . . who, in support of [his or] her motion for summaryjudgment, submits evidence that the accident resulted from the driver losing control ofthe vehicle, shifts the burden to the driver to come forward with an exculpatoryexplanation" (Siegel v Terrusa, 222 AD2d 428, 428-429 [1995]). In opposition,the Braun defendants failed to raise a triable issue of fact sufficient to defeat theplaintiff's cross motion. The driver testified at her deposition that she skidded on blackice while driving too fast and weaving in and out of her lane of traffic when she lostcontrol of her vehicle and, thus, failed to raise a triable issue of fact as to whether theskid was unavoidable (see Mughal v Rajput, 106 AD3d at 888). Contrary to theBraun defendants' contention, the plaintiff's alleged comparative fault in, inter alia,removing his seat belt just prior to the accident, does not defeat the plaintiff's crossmotion, because it concerns damages, not liability (see O'Connor v S & R Medallion Corp., 2 AD3d 176,177 [2003]). Skelos, J.P., Austin, Sgroi and LaSalle, JJ., concur.