The following papers read on this motion: Notices of Motion and Affidavits X Affirmation in Opposition X Reply Affirmation X Relief Requested Motion by the defendant, Incorporated Village of New Hyde Park a/k/a Village of New Hyde Park, for an order pursuant to CPLR 3212 granting summary judgment dismissing the instant action as against it (Motion Sequence No. 3). Motion by the defendant, Invite Health Inc., for an order pursuant to CPLR 3212 granting summary judgment dismissing the instant action as against it (Motion Sequence No. 4). The plaintiff submits opposition to both motions. The movants submit respective reply affirmations. Background The plaintiff initiated the instant action for personal injuries sustained on October 4, 2016, when she fell on the sidewalk in front of 1645A Jericho Turnpike in the Incorporated Village of New Hyde Park (hereinafter “Village”). Defendant Invite Health, Inc. (hereinafter “Invite”) and defendant Video Projects LLC entered into a commercial lease with Invite as tenant and Video Projects LLC as landlord. The area of the sidewalk where plaintiff fell had been painted with a yellow line, and asphalt had been placed in the area as well. Applicable Law “To obtain summary judgment it is necessary that the movant establish his cause of action or defense ‘sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212[b], and he must do so by tender of evidentiary proof in admissible form” (Zuckerman v. City of New York, 49 N.Y.2d 557, citing Friends of Animals v. Associated Fur Manufacturers, 46 N.Y.2d 1065). Once the movant for summary judgment has met his or her burden, it is incumbent upon the party opposing said motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which warrant a trial (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320; see also CPLR 3212[b]).” Village Law §341-a provides that prior written notice is required in order to maintain any action against the Village for any sidewalk defects. “Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies” (Loghry v. Village of Scarsdale, 149 A.D.3d 714, quoting Palka v. Village of Ossining, 120 A.D.3d 641). In circumstances where a prior written notice statute has been enacted, constructive notice and even actual notice are insufficient to obviate the need to comply with the prior written notice requirement (see Chirco v. City of Long Beach, 106 A.D.3d 941, citing Granderson v. City of White Plains, 29 A.D.3d 739). Discussion As a preliminary matter, regarding Invite’s motion, it is noted that the subject accident location was at issue in another Supreme Court, Nassau County action entitled Jayne Mule and Lawrence Engel v. Invite Health at New Hyde Park, Inc. and Video Projects, LLC (hereinafter the “Mule Action”), bearing Index Number 606098/15. The instant motion by Invite is identical to the motion for summary judgment that was granted in the Mule Action, in that the same commercial tenant, relying upon the same provisions of the same commercial lease, demonstrated that it is not responsible for maintaining or repairing the subject sidewalk. In opposition, the plaintiffs in the instant action and in the Mule Action each relied upon Village of New Hyde Park Code §165-40.1 in claiming that Invite has a duty as a commercial tenant at the subject location to maintain and repair the sidewalk. However, contrary to the plaintiff’s contentions, and as noted in the decision dismissing the Mule Action as against Invite, the obligation to maintain and repair the subject accident location is dictated by the terms of the applicable lease (see Lupo v. Montauk Properties, LLC, 20 A.D.3d 398; see also Scuteri v. 7318 13th Ave. Corp., 52 Misc.3d 391). Further, as Video Projects LLC acknowledged placing the asphalt and painting the yellow line at the subject accident location, it is clear that Invite did not create the condition or make special use of the sidewalk (see Taubenfeld v. Starbucks Corp., 48 A.D.3d 310; see also Dalder v. Incorporated Vil. Of Rockville Ctr., 116 A.D.3d 908; see also Scuteri, supra). In any event, the doctrine of collateral estoppel precludes this issue from being relitigated (see Headley v. New York City Tr. Auth., 100 A.D.3d 700). Regarding the Village’s motion, the admission of Video Projects LLC that it placed the asphalt and painted the yellow line likewise demonstrates that the Village did not create the condition that caused the plaintiff’s accident. Further, the Village has demonstrated that it did not receive prior written notice through the deposition testimony of Thomas P. Gannon, Superintendent of the Department of Public Works and Building Department for the Village, as well as the affidavit of Cathryn Hillmann, Village Clerk. Mr. Gannon testified that he searched Village records and found no prior written complaints about the sidewalk where the subject accident occurred, and that he confirmed that there was no such prior written notice with the “tree requests” division. Ms. Hillmann stated in her affidavit that the Village was not named in the Mule Action, and that she performed a search of Village records and could confirm that there was no prior written notice with regard to the subject accident location. As such, the Village has demonstrated entitlement to summary judgment (see Chirco, supra; see also Zuckerman, supra). In opposition, the plaintiff argues that the Village had actual notice of the defective condition at the subject accident location. However, this is insufficient to create an issue of fact under the circumstances presented here (see Alvarez, supra; see also Chirco, supra). Conclusion In light of the foregoing, it is hereby ORDERED that the Village’s motion for summary judgment (Motion Sequence No. 3) is granted, and it is further ORDERED that defendant Invite’s motion (Motion Sequence No. 4) is granted, and it is further ORDERED that the caption in the above matter is hereby amended as follows: Mary Ellen Burriesci, Plaintiff v. Video Projects LLC, and Town of North Hempstead, Defendants; 613519/17. Dated: November 13, 2019
