HORNBECK v. VILLAGE OF TARRYTOWN (2008)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Giacomo, J.), dated September 4, 2007, which granted the defendants' motion for summary judgment dismissing the complaint and denied her cross motion to compel discovery.

ORDERED that the order is reversed, on the law, with costs, the motion for summary judgment dismissing the complaint is denied, the cross motion to compel discovery is granted, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings, including scheduling a conference to address outstanding discovery.

The defendants failed to make a prima facie showing that the area where the plaintiff fell was within the scope of the applicable prior written notice provisions set forth in Village Law § 6-628 and Village of Tarrytown Code § 216-1 (see Davis v. County of Nassau, 166 A.D.2d 498, 560 N.Y.S.2d 696).   Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Furthermore, the record indicates that there are certain outstanding items of discovery, including the examinations before trial of the defendants.   Accordingly, the plaintiff's cross motion to compel discovery should have been granted.