GALARDI v. Telephone Realty Company, et al., defendants-appellants (and a third-party action). (2022)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals and the defendants Telephone Realty Company and Verizon New York, Inc., separately appeal from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered September 10, 2020.  The order, insofar as appealed from by the plaintiff, granted that branch of the motion of the defendant County of Nassau which was for summary judgment dismissing the second amended complaint insofar as asserted against it.  The order, insofar as appealed from by the defendants Telephone Realty Company and Verizon New York, Inc., granted that branch of the motion of the defendant County of Nassau which was for summary judgment dismissing those defendants’ cross claims insofar as asserted against it.

ORDERED that the appeal by the defendant Telephone Realty Company is dismissed;  and it is further,

ORDERED that the appeal by the defendant Verizon New York, Inc., from so much of the order as granted that branch of the motion of the defendant County of Nassau which was for summary judgment dismissing the cross claims of the defendant Telephone Realty Company insofar as asserted against it is dismissed, as the defendant Verizon New York, Inc., is not aggrieved by that portion of the order (see CPLR 5511;  Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132);  and it is further,

ORDERED that the order is affirmed insofar as appealed from by the plaintiff and insofar as reviewed on the appeal by the defendant Verizon New York, Inc.;  and it is further,

ORDERED that one bill of costs is awarded to the defendant County of Nassau payable by the appellants appearing separately and filing separate briefs.

The plaintiff allegedly was injured when she tripped and fell on a curb in front of premises owned by the defendants Telephone Realty Company and Verizon New York, Inc. (hereinafter together the Verizon defendants).  The alleged incident occurred on Zeckendorf Boulevard in Hempstead, a public road owned and maintained by the defendant County of Nassau.

The plaintiff commenced this action to recover damages for personal injuries against, among others, the Verizon defendants and the County.  The Verizon defendants asserted cross claims against, among others, the County.  After the completion of discovery, the County moved, inter alia, for summary judgment dismissing the second amended complaint and the Verizon defendants’ cross claims insofar as asserted against it.  The Supreme Court granted the motion.  The plaintiff appeals, and the Verizon defendants separately appeal.

Telephone Realty Company did not oppose the County's motion and, therefore, is not aggrieved by the order granting that motion (see Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132;  see also U.S. Bank N.A. v. Ballin, 158 A.D.3d 786, 787, 72 N.Y.S.3d 110).  Accordingly, the appeal by Telephone Realty Company must be dismissed.

“A municipality that has enacted a prior written notification law may avoid liability for a defect or hazardous condition that falls within the scope of the law if it can establish that it has not been notified in writing of the existence of the defect or hazard at a specific location” (Torres v. Incorporated Vil. of Rockville Ctr., 195 A.D.3d 974, 975, 146 N.Y.S.3d 519;  see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).  “Such [prior written] notice is obviated where the plaintiff demonstrates that the municipality ‘created the defect or hazard through an affirmative act of negligence’ or that a ‘special use’ conferred a benefit on the municipality” (Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 127–128, 927 N.Y.S.2d 304, 950 N.E.2d 908, quoting Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).

Here, it is undisputed that the County did not receive prior written notice of the alleged defect and therefore the County “met its burden of establishing that it did not receive prior written notice of the [defective] condition, thereby shifting to plaintiff the burden of demonstrating either that a question of fact existed in that regard or that one of the Amabile exceptions applied” (Groninger v. Village of Mamaroneck, 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908;  see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;  Smith v. City of New York, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, , 2022 WL 43611832022 N.Y. Slip Op. 05226 [2d Dept.]).  In opposition, the plaintiff and Verizon New York, Inc., failed to raise a triable issue of fact as to whether the County affirmatively created the alleged condition that caused the plaintiff to fall (see Groninger v. Village of Mamaroneck, 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908;  Smith v. City of New York, ––– A.D.3d ––––,––– N.Y.S.3d ––––, 2022 WL 4361183, 2022 N.Y. Slip Op. 05226).

The plaintiff's remaining contention is improperly raised for the first time on appeal (see Bank of Am., N.A. v. Lino, 203 A.D.3d 1004, 1005, 162 N.Y.S.3d 751;  Kachele v. Nouveau El. Indus., Inc., 186 A.D.3d 1626, 1627, 129 N.Y.S.3d 833).

Accordingly, the Supreme Court properly granted those branches of the County's motion which were for summary judgment dismissing the second amended complaint and the cross claims of Verizon New York, Inc., insofar as asserted against it.

CONNOLLY, J.P., ROMAN, FORD and WAN, JJ., concur.