Sadler v. Town of Hurley

—Crew III, J. Appeal from an order of the Supreme Court (Torraca, J.), entered October 20, 1999 in Ulster County, which, inter alia, granted motions by defendants Town of Hurley and Tonche Association, Inc. for summary judgment dismissing the complaint against them. On September 24, 1993 at approximately 3:00 a.m., plaintiff Gary W. Sadler, a volunteer firefighter with third-party defendant, Olive Fire Department No. 1, Inc., went to Kenozia Lake, located on Boyce Road in the Town of Hurley, Ulster County, to assist in pumping water from the lake into tanker trucks. The lake was owned by defendant Tonche Association, Inc., which had an agreement with the fire department permitting it to use the lake to extract water for use in firefighting. Upon arriving at the lake, Sadler began assisting in setting up a pumper truck. As he walked toward the truck to obtain his gear, he was unable to see the ground due to poor lighting and fell off the side of the dam and into the lake, sustaining serious injuries. Consequently, Sadler and his wife, derivatively, commenced this action in December 1994 against Tonche and defendant Town of Hurley alleging that they negligently maintained the dam and road at the end of the lake, which caused Sadler’s fall and injuries. Tonche thereafter commenced a third-party action against the fire department. In March 1999, Tonche served plaintiffs with a demand to serve and file a note of issue. In July 1999, the Town moved for summary judgment and Tonche cross-moved seeking dismissal of the complaint for failure to prosecute or, in the alternative, for summary judgment. Supreme Court granted both motions for summary judgment and, additionally, held that dismissal was mandated for want of prosecution pursuant to CPLR 3216. Plaintiffs now appeal. Contrary to plaintiffs’ contention, we are of the view that Supreme Court properly granted summary judgment in favor of the Town. A review of the record makes clear that the Town [806] was not served with written notice pursuant to Town Law § 65-a. To the extent that plaintiffs rely upon the special use doctrine, suffice it to note that such is “reserved for situations where a landowner whose property abuts a public street * * * derives a special benefit from that property unrelated to the public use, and is therefore required to maintain a portion of that property” (Poirier v City of Schenectady, 85 NY2d 310, 315). Here, the Town used the lake not to serve a private use but, rather, to serve the public need to extract water for firefighting. We come to a different conclusion, however, with regard to Supreme Court’s grant of summary judgment to Tonche. It is axiomatic that Tonche, as a landowner, had a duty to maintain its property in a reasonably safe condition and to warn individuals lawfully on its property of latent dangerous conditions (see, Comeau v Wray, 241 AD2d 602, 603). The record reveals that Tonche was aware that fire department volunteers would be on its property to extract water from the lake in order to fight fires. Plaintiffs’ expert opined that Sadler’s accident was caused by the negligent construction and maintenance of the dam due to its irregular shape and the absence of guardrails and decking over an indentation along the dam where Sadler fell. Given that evidence, we are of the view that Supreme Court erred in granting summary judgment to Tonche. We likewise are of the view that Supreme Court erred in dismissing the complaint against Tonche for failure to prosecute. It is clear from a review of the record that plaintiffs have a meritorious cause of action and, based upon the extensive pretrial discovery and opposition to the cross motion for summary judgment, it is equally clear that plaintiffs had no intention of abandoning this action. While it is true that counsel for plaintiffs proffered no excuse for the failure to serve and file a note of issue,* we note that the delay here was a mere three weeks and, as such, we find no substantive evidence of prejudice to Tonche. Under all of the circumstances, we exercise our discretion not to penalize plaintiffs with the extreme measure of dismissal and substitute the sanction of a fine of $1,000 payable by plaintiffs to Tonche (see, King v Jordan, 243 AD2d 951, 953; Holdorf v Oneonta Urban Renewal Agency, 99 AD2d 865, [807] 867). Accordingly, Tonche’s cross motion to dismiss for failure to prosecute is denied on the condition that plaintiffs pay $1,000 to Tonche and file a note of issue, both within 45 days after service of a copy of this Court’s order with notice of entry, failing which that portion of Supreme Court’s order granting Tonche’s cross motion to dismiss for failure to prosecute will be affirmed, with costs to Tonche. Mugglin, Rose and Lahtinen, JJ., concur. Footnotes [*] The record reflects that during the 90-day period following service of Tonche’s demand, plaintiffs’ attorneys were relieved and plaintiffs appeared pro se as of June 3, 1999. While the record does not reflect when plaintiffs’ present counsel undertook representation (the affirmation in opposition to the motion and cross motion is dated September 15, 1999), there may well have been an understandable oversight with regard to the demand to serve and file a note of issue.