Montfort, Healy, McGuire & Salley Successful in Motion for Summary Judgment

Montfort, Healy, McGuire & Salley’s Jim Murphy successfully argued that The Incorporated Village of Freeport (“The Village”) was not liable for injuries caused by a defective sidewalk. The case was brought against the Village in the Supreme Court of Nassau County after an individual tripped and fell due to a brick walkway installed by the Village. Although plaintiff testified that she was not looking where she was walking and did not see the depressed brick that caused the fall, she argued that the Village was liable for the injuries she suffered.

The firm initially moved for summary judgment in 2017, but that motion was denied as premature with leave to renew upon the completion of all depositions. Upon the completion of depositions, the firm again moved for summary judgment contending that no triable issue of fact existed because the Village did not have any prior written notice of any defective sidewalk condition and did not perform any affirmative acts or repairs for five years prior to the date of the accident. The court agreed with the firm and granted the motion for summary judgment on July 29, 2018.

In issuing its decision, the court recognized that the Village enacted a prior written notice law relieving the municipality of liability for injuries caused by a defect unless it has received prior written notice of the defect or an exception to the prior written notice requirement applies. The Village ordinance required notice to be given of the defect and proof that the Village failed to repair it within a reasonable time. However, the plaintiff argued that, even though no notice was given, an exception to the notice requirement existed in that the Village created the defect.

In proving that the Village did not create the defect, the firm relied on the deposition of an accountant who owned the firm abutting the defective sidewalk. The accountant testified the sidewalk was installed by the Village approximately 12 years prior to the accident and that he had never received any complaints regarding the installation of the brick sidewalk. The firm also provided the deposition transcript of a Village Construction Inspector who testified that the brick sidewalk was installed in 2008. The Inspector inspected the condition of the sidewalk following the accident but stated he did not receive any complaints about the sidewalk prior to the accident. The evidence was clear to the court that the Village made a prima facie showing of entitlement to judgment as a matter of law.

In an attempt to rebut the motion for summary judgment, the plaintiff failed to produce any admissible evidence that the pavers were installed properly. The Court refused to recognize an issue of fact solely based on plaintiff’s mere speculation that the pavers were installed improperly. Thus, the Court granted the Village’s motion for summary judgment as no issue of fact existed.

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