CHIARINI CHIARINI v. COUNTY OF ULSTER

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Supreme Court, Appellate Division, Third Department, New York.

Melissa CHIARINI, an Infant, by Paul CHIARINI, Her Parent, et al., Respondents, v. COUNTY OF ULSTER, Appellant.

Decided: July 22, 2004

Before:  MERCURE, J.P., CREW III, CARPINELLO, LAHTINEN and KANE, JJ. Cook, Tucker, Netter & Cloonan, Kingston (Michael T. Cook of counsel), for appellant. Basch & Keegan L.L.P., Kingston (Derek J. Spada of counsel), for respondents.

Appeal from an order of the Supreme Court (Bradley, J.), entered April 10, 2003 in Ulster County, which denied defendant's motion for summary judgment dismissing the complaint.

In January 1999, plaintiff Melissa Chiarini sustained serious injuries when a sled she was riding with plaintiff Eli Brown allegedly struck a cement post near a catch basin at the edge of County Route 51 (also known as West Saugerties Road) in the Town of Saugerties, Ulster County.   The two teenagers had started their ride on Platt Cove Road, a Town road that was not maintained during the winter and was reportedly a popular place for sledding.   Their ride apparently continued onto the right-of-way of the County road, which was opened and maintained, where the accident occurred.   Plaintiffs commenced separate negligence actions against the Town of Saugerties and defendant and the four actions were eventually consolidated.

The Town moved for summary judgment dismissing the consolidated action against it asserting, among other things, that it received no prior written notice of the alleged defective condition as required by its local law and also that General Obligations Law § 9-103 foreclosed liability for ordinary negligence.   Supreme Court found that the action against the Town was precluded by the prior written notice statute and added, in dicta, that it agreed with the Town's contention regarding the applicability of General Obligations Law § 9-103.   Defendant then moved for summary judgment asserting only General Obligations Law § 9-103 as a ground for dismissal.   In support of the motion, defendant submitted an attorney's affidavit, the Town's memorandum of law from its motion and Supreme Court's decision from the Town's motion.   Plaintiffs opposed the motion with numerous affidavits and transcripts from depositions upon oral questions.   Supreme Court denied the motion.   Defendant appeals.

 When pursuing summary judgment, the movant bears the threshold burden of tendering evidentiary proof in admissible form establishing entitlement to judgment as a matter of law (see Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81, 760 N.Y.S.2d 397, 790 N.E.2d 772 [2003];  Holly v. Morgan, 2 A.D.3d 1170, 1171, 768 N.Y.S.2d 709 [2003] ).   The affidavit of defendant's attorney, who claimed no personal knowledge of the germane facts, was “ probatively valueless and without evidentiary significance” (Jabs v. Jabs, 221 A.D.2d 704, 704, 633 N.Y.S.2d 616 [1995];  see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).   Similarly, the Town's memorandum of law from a prior motion that was attached to the affidavit of defendant's attorney had no evidentiary value (see Ellsworth v. City of Gloversville, 269 A.D.2d 654, 655, 703 N.Y.S.2d 294 [2000] ).   Indeed, it appears that defendant was essentially premising its motion upon Supreme Court's dicta regarding General Obligations Law § 9-103 in the decision addressing the Town's motion.   Dicta, however, “should not be accorded preclusive effect” (Pollicino v. Roemer & Featherstonhaugh, 277 A.D.2d 666, 668, 716 N.Y.S.2d 416 [2000] ).   While General Obligations Law § 9-103 constitutes substantive law and not an affirmative defense (see Ferres v. City of New Rochelle, 68 N.Y.2d 446, 450, 510 N.Y.S.2d 57, 502 N.E.2d 972 [1986] ), determining the applicability of the statute is nevertheless generally a fact-driven analysis, particularly when a municipality is implicated (see Sena v. Town of Greenfield, 91 N.Y.2d 611, 673 N.Y.S.2d 984, 696 N.E.2d 996 [1998];  Ferres v. City of New Rochelle, supra;  Walters v. County of Rensselaer, 282 A.D.2d 944, 724 N.Y.S.2d 97 [2001];  Perrott v. City of Troy, 261 A.D.2d 29, 699 N.Y.S.2d 783 [1999] ).   Defendant failed to submit any evidentiary proof providing a factual framework for analyzing the applicability of General Obligations Law § 9-103 and, thus, did not meet its threshold burden on the motion for summary judgment.

 Defendant's further argument regarding the scope of its duty was not asserted as a ground for dismissal in its motion papers and, on this record, we decline to address it (see Fenton v. Ruchar, 300 A.D.2d 898, 900, 750 N.Y.S.2d 900 [2002];  Lumbermens Mut. Cas. Co. v. Morse Shoe Co., 218 A.D.2d 624, 625-626, 630 N.Y.S.2d 1003 [1995] ).

ORDERED that the order is affirmed, with costs.

LAHTINEN, J.

MERCURE, J.P., CREW III, CARPINELLO and KANE, JJ., concur.

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