LAUBIS v. Town of Hempstead, et al., respondents. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals, and the defendant County of Nassau cross-appeals, from an order of the Supreme Court, Nassau County (Felice J. Muraca, J), entered April 3, 2023.  The order, insofar as appealed from, granted the separate motions of the defendant Town of Hempstead and the defendants Leo Kearns, Inc., and Leo Kearns Funeral Directors, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them.  The order, insofar as cross-appealed from, denied the motion of the defendant County of Nassau for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from;  and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, and the motion of the defendant County of Nassau for summary judgment dismissing the complaint insofar as asserted against it is granted;  and it is further,

ORDERED that one bill of costs is awarded to the defendants appearing separately and filing separate briefs.

On April 2, 2020, the plaintiff allegedly was injured when she tripped and fell on a raised sidewalk flag on a sidewalk in East Meadow.  In September 2020, the plaintiff commenced this action against the defendant County of Nassau, the defendant Town of Hempstead, and the defendants Leo F. Kearns, Inc., and Leo F. Kearns Funeral Directors, Inc. (hereinafter together the Kearns defendants), which were the owners of the property abutting the sidewalk where the accident occurred.  The County, the Town, and the Kearns defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them.  In an order entered April 3, 2023, the Supreme Court denied the County's motion and granted the separate motions of the Town and of the Kearns defendants.  The plaintiff appeals, and the County cross-appeals.

“Prior written notice of a defective condition is a condition precedent to maintaining an action against a municipality where, as here, there is a local law requiring such notice” (Schiller v. Town of Ramapo, 202 A.D.3d 1022, 1022, 164 N.Y.S.3d 146).  “The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property” (Gonzalez v. Town of Hempstead, 124 A.D.3d 719, 720, 2 N.Y.S.3d 527 [internal quotation marks omitted];  see Kolenda v. Incorporated Vil. of Garden City, 215 A.D.3d 647, 649–650, 187 N.Y.S.3d 669).  “Where a municipality establishes that it lacked prior written notice under a prior written notice statute, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule” (Sanchez v. County of Nassau, 222 A.D.3d 685, 686, 201 N.Y.S.3d 450 [internal quotation marks omitted] ).

Here, the County established, prima facie, that it did not receive prior written notice of the alleged defect by submitting, inter alia, an affidavit from an employee within the Office of the Nassau County Attorney responsible for maintaining the files containing notices of defect, who averred that a records search failed to reveal any prior written notice of a defective condition at the subject location for a period of six years prior to and including the date of the accident (see Grady v. Town of Hempstead, 223 A.D.3d 885, 886, 204 N.Y.S.3d 542).  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the County affirmatively created the alleged defective condition by merely speculating that the County had previously repaired the sidewalk in the location where the accident occurred (see Goodman v. City of New York, 230 A.D.3d 1115, 1117, 219 N.Y.S.3d 340;  Maggio v. Town of Hempstead, 134 A.D.3d 685, 686, 20 N.Y.S.3d 576).  Accordingly, the Supreme Court should have granted the County's motion for summary judgment dismissing the complaint insofar as asserted against it.

“ ‘Generally, liability for injuries sustained as a result of a dangerous condition on a public sidewalk or street is placed on the municipality, and not on the owner or lessee of abutting property’ ” (Paska v. City of New York, 241 A.D.3d 1359, 1360, 241 N.Y.S.3d 445, quoting Farrell v. City of New York, 67 A.D.3d 859, 860, 889 N.Y.S.2d 103).  “ ‘An abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty’ ” (La Fleur v. Janowitz, 228 A.D.3d 636, 636, 213 N.Y.S.3d 143 [internal quotation marks omitted], quoting Morales v. Village of Ossining, 218 A.D.3d 460, 461, 193 N.Y.S.3d 131).

Here, the Kearns defendants established, prima facie, that they did not create the alleged defective condition, that they did not make a special use of the area of the sidewalk where the plaintiff allegedly fell, and that there was no ordinance or statute placing an obligation on them to maintain the sidewalk abutting their property at the time of the accident (see id. at 637, 213 N.Y.S.3d 143).  In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted the Kearns defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

Furthermore, the Town established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not own, maintain, make a special use of, or make any repairs to the sidewalk where the accident occurred (see Gilbert v. City of Rye, 175 A.D.3d 470, 472, 106 N.Y.S.3d 134).  In opposition, the plaintiff failed to raise a triable issue of fact.  Accordingly, the Supreme Court properly granted the Town's motion for summary judgment dismissing the complaint insofar as asserted against it.

In light of our determination, we need not reach the parties' remaining contentions.

CHAMBERS, J.P., WOOTEN, WAN and HOM, JJ., concur.