| Maya v Town of Hempstead |
| 2015 NY Slip Op 03507 [127 AD3d 1146] |
| April 29, 2015 |
| Appellate Division, Second Department |
[*1]
| Rhonda Maya et al., Appellants, v Town ofHempstead et al., Respondents. |
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), forappellants.
Joseph J. Ra, Town Attorney, Hempstead, N.Y. (Mary Elizabeth Mahon of counsel),for respondent Town of Hempstead.
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Keri A.Wehrheim of counsel), for respondents Stephen Schoenfeld and Stefanie MautnerSchoenfeld.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Nassau County (Sher, J.), entered June 13, 2014, whichgranted the motion of the defendants Stephen Schoenfeld and Stefanie MautnerSchoenfeld, and the separate motion of the defendant Town of Hempstead, for summaryjudgment dismissing the complaint insofar as asserted against each of them.
Ordered that the order is affirmed, with one bill of costs payable to the defendantsappearing separately and filing separate briefs.
The plaintiff Rhonda Maya (hereinafter the injured plaintiff) alleged that she trippedand fell due to a raised sidewalk flag adjacent to property located in the defendant Townof Hempstead. The defendants Stephen Schoenfeld and Stefanie Mautner Schoenfeld(hereinafter together the Schoenfelds) owned the property abutting the sidewalk flagwhere the accident occurred. The plaintiffs commenced this action to recover damagesfor personal injuries against the Schoenfelds and the Town, alleging negligence. TheSchoenfelds and the Town separately moved for summary judgment dismissing thecomplaint insofar as asserted against each of them. The Supreme Court granted themotions.
"Generally, liability for injuries sustained as a result of negligent maintenance of orthe existence of dangerous and defective conditions to public sidewalks is placed on themunicipality and not the abutting landowner" (Hausser v Giunta, 88 NY2d 449,452-453 [1996]; see Morelli vStarbucks Corp., 107 AD3d 963 [2013]; Khaimova v City of New York, 95 AD3d 1280, 1281[2012]). "An abutting owner or lessee will be liable to a pedestrian injured by adangerous condition on a public sidewalk only when the owner or lessee either createdthe condition or caused the condition to occur because of a special use, or when a statuteor ordinance places an obligation to maintain the sidewalk on the owner or the lessee andexpressly makes the owner or the lessee liable for injuries caused by a breach of thatduty" (Hevia v Smithtown AutoBody of Long Is., Ltd., 91 AD3d 822, 822-823 [2012]; see Dalder v Incorporated Vil. ofRockville Ctr., 116 AD3d 908 [2014]; Morelli v Starbucks Corp., 107AD3d at 963; Petrillo v Town ofHempstead, 85 AD3d 996, 997 [2011]). Here, in support of their motion, theSchoenfelds demonstrated, prima facie, that they did not make special use of thesidewalk adjacent to their home. The Schoenfelds also demonstrated, prima facie, thatthey did not negligently create [*2]the condition of theraised sidewalk flag through negligent sidewalk repair. Further, while the Code of theTown of Hempstead imposes a duty on, among others, landowners to keep contiguoussidewalks in good and safe repair, it does not impose tort liability upon such parties forinjuries caused by a violation of that duty (see Dalder v Incorporated Vil. ofRockville Ctr., 116 AD3d at 908; O'Toole v City of Yonkers, 107 AD3d 866, 867 [2013]; Taubenfeld v Starbucks Corp.,48 AD3d 310, 311 [2008]). In opposition, the plaintiffs failed to raise a triable issueof fact. Accordingly, the Supreme Court properly granted the Schoenfelds' motion forsummary judgment dismissing the complaint insofar as asserted against them.
Where, as here, a municipality has enacted a prior written notice law, it may not besubjected to liability for injuries caused by a dangerous condition which comes withinthe ambit of the law unless it has received prior written notice of the alleged defect ordangerous condition, or an exception to the prior written notice requirement applies(see Poirier v City of Schenectady, 85 NY2d 310 [1995]; Palka v Village of Ossining,120 AD3d 641 [2014]; Cuebas v City of Yonkers, 97 AD3d 779, 780 [2012]; Hanover Ins. Co. v Town ofPawling, 94 AD3d 1055, 1056 [2012]; Braver v Village of Cedarhurst, 94 AD3d 933, 934 [2012])."Recognized exceptions to the prior written notice requirement exist where themunicipality created the defect or hazard through an affirmative act of negligence, orwhere a special use confers a special benefit upon it" (Miller v Village of E.Hampton, 98 AD3d 1007, 1008 [2012]).
Here, the Town established its prima facie entitlement to judgment as a matter of lawby demonstrating that it did not receive the requisite prior written notice of the conditionalleged, as required by section 6-3 of the Code of the Town of Hempstead. It furtherestablished that it did not create the condition through an affirmative act of negligence,or make special use of the sidewalk. In opposition, the plaintiffs failed to raise a triableissue of fact. Accordingly, the Supreme Court properly granted the Town's motion forsummary judgment dismissing the complaint insofar as asserted against it. Chambers,J.P., Dickerson, LaSalle and Barros, JJ., concur.