A personal injury action arises out of a motor vehicle accident that occurred at the intersection of Oceanside Road and Erwin Place in Oceanside, New York. Among other injuries, the woman suffered a traumatic brain injury.
On June 30, 2010, the Court denied the opponents’ motions for summary judgment to dismiss the woman’s complaint. The Nassau Court determined that, as the woman had yet to testify at her sworn examination before trial, the accused men’s motion for summary judgment must be denied as premature. The Court also determined that because both accused men have failed to demonstrate that the Town of Hempstead Building Zone Ordinances do not apply to them, the motion and cross motion must be denied. Finally, the Court also held that, because the driver’s operation of his motor vehicle while under the influence of alcohol arguably may be deemed by the trier of fact to be a superseding cause of the woman’s injuries, the accused men’s motions for summary judgment to dismiss the woman’s action based in negligence must be denied.
The core of the woman’s allegations against the accused men relates to certain bushes located between the residences, which bushes are alleged to block the view of traffic. The woman alleges that the overgrown nature of the bushes, which she claim are in contravention of height requirements provided in local ordinances, contributed in some measure to the occurrence of the serious traffic accident.
In an attempt to reverse the Court’s determination, the accused men both separately move for leave to renew the Court’s Decision and Order. Both accused state that their respective motions are made pursuant to the Civil Practice Law and Rules, which provides for a combined motion for leave to reargue and leave to renew.
The Civil Practice Law provides that a combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made.
In considering such a motion made pursuant to the Civil Practice Law and Rules, a Court must measure each branch of the motion according to the requirements which govern motions for re-argument and renewal, respectively.
In the instant case, one of the accused make it plain in his motion and reply papers that his motion is one for renewal, not re-argument. Specifically, in the reply it is stated that, despite the woman’s assertion that the accused men’s motion is a combined motion to renew and reargue, the accused men’s motion was in fact made as motion to renew. Yet, the accused men include in his motion and reply papers various arguments previously submitted to the Court, without identifying which matters of fact or law the Court allegedly overlooked or misapprehended.
The other man from Suffolk is intimate that his motion is both a renewal and a re-argument motion, although the labeling of his own motion is inconsistent within the affirmation of counsel. Finally, in his reply, the accused claim that the motion is a combined one for renewal and re-argument.
In any event, the Court will consider each such motion separately, as required by statute. Firstly, with respect to the first man’s renewal motion, the Court notes that the accused have not presented any new facts for the Court’s consideration, nor have they demonstrated that there has been a change in the law that would change the Court’s prior determination. Thus, the accused man’s motion to renew is denied, but the Court will consider his motion as one seeking leave to reargue.
The other accused man’s renewal motion is likewise denied. Although the accused have submitted the woman’s deposition testimony, which he did not possess when he filed the original summary judgment motion, the woman’s testimony does not change the prior determination of the Court. The woman’s testimony consists of a total of six (6) pages wherein she testified that she remembers nothing about the accident. She did not testify about the general appearance of the roadways involved, nor did she offer testimony about the bushes in question. Despite the fact that her testimony is wholly and plainly of no moment regarding the men’s liability related to the bushes, the accused men both submitted such testimony in support of their motion.
Although both men’s motions are not specifically and properly identified, the Court will afford a broader view of their respective motions and treat those motions as motions for re-argument as well.
At his oral examination before trial, one of the men testified that he had consumed alcohol on the day of the accident. He testified that ultimately he pled guilty to driving while under the influence of alcohol and that he was sentenced upon that conviction. He stated at his deposition that he was also prosecuted and pled guilty to vehicular assault in the 2nd degree, a class E felony. He admitted that he was operating a motor vehicle while having 0.09 of 1% per centum or more of alcohol in his blood. His license was subsequently revoked.
The man also testified that at the time of the accident which resulted to the woman’s injury, he was operating his motor vehicle heading northbound on Oceanside Road. The complainant woman was operating her vehicle westbound and was attempting to make a left hand turn onto Oceanside Road when the impact occurred. The woman’s travel was governed by a stop sign on Erwin Place. The facts established that, at the intersection, Oceanside Road is slightly curved so that a vehicle traveling north on Oceanside Road, such as the accused man’s vehicle, would be driving on a bend as he approached the subject T-intersection. In fact, the man testified at his deposition that a person traveling on Oceanside Road did not have clear view of the intersection as a result of the curvature of the road, the telephone pole, the speed limit sign and also the hedgerow on the accused man’s properties.
It was also established on the underlying motions that the other man is the owner of the premises, which sits on the south-east corner of said T-intersection, and the front of which faces Erwin Place. The accused is the owner as tenants in common of the premises, which home is adjacent to the other accused man’s home, and the front of which faces Oceanside Road. It was legitimate entitlement to summary judgment as a matter of law.
The testimony of the non-party witnesses establishes that the bushes in question may have contributed to the occurrence of the accident underlying the action, thus raising triable issues of fact with respect to the personal injury liability of both the accused. Neither of the accused men submitted the non-party witness deposition testimony to the Court. The woman submitted that deposition testimony in her opposition to the instant motions made by the accused.
The woman’s former boyfriend testified that the bushes that are blocking the view of the vehicles located on Erwin Place, thus interfering with a driver’s ability to see cars traveling northbound on Oceanside Road.
A passenger in the car traveling behind the woman described that same intersection as being obstructed by bushes that were about six feet high.
A man driving the car traveling behind the woman at the time of the accident testified that the bushes in question block the view of the oncoming traffic on Oceanside Road. He saw the truck only after it had passed the bushes. According to him, the bushes started relatively close to the intersection and ran all the way down and he couldn’t really see the street at all.
The Court turns to the accused men’s claims that the town ordinances do not apply to them, and do not place any duty on them with regard to motorists.
Specifically, the ordinances alleged by the woman to have been breached by the moving accused men relate to Fences and Fences and Planting screens. Upon their instant motions to renew, the accused have failed to proffer any new or additional facts surrounding the alleged statutory breaches. Nevertheless, even overlooking the otherwise fatal procedural infirmity, the accused have failed to demonstrate, yet again on the renewed motion, that the ordinances do not apply to them.
As the Court detailed in its prior Decision and Order, the woman’s personal injury claims against the accused relate to their alleged failure to keep the hedges on their property properly trimmed so as to permit maximum view of the T-intersection. In that regard, while it is true that generally property owners have no common-law duty to control the vegetation on their property for the benefit of public highway users, the accused have failed to show that the shrubbery at issue does not apply to them. Upon their instant motions, the accused maintain that even if the shrubbery at issue is deemed to be a planting screen within the meaning of the ordinances, the language of the ordinances to not specifically outline or intimate that the ordinance is in place to protect drivers on a highway. Relying principally upon the Second Departments’ rulings as well as the Court of Appeals’ ruling, the accused argue that in addition to the fact that there is no common law duty owed to the woman by the landowners, the public policy also supports the finding that they as private landowners cannot be held liable to the accused. The arguments are unavailing.
It is true that there is no common law duty imposed upon owners or occupiers of land to control vegetation on their property for the benefit of users of a public highway. The absence of a common law duty on the abutting owner, however, does not end the inquiry into the abutting owner’s potential liability. There exists an exception to the common law rule when, as in this case, an ordinance or a specific regulatory provision places an affirmative duty on the abutting owner to maintain and keep the area free of obstructions. It is undisputed that the Town of Hempstead Building Zone Ordinance, impose upon the property owners a duty to prevent vegetation from visually obstructing the roadway. Thus, in the absence of any demonstration by the accused that they complied with said ordinances, proof of noncompliance with the regulatory provisions may give rise to tort liability for any damages proximately caused thereby.