Opinion
2014-00724, Index No. 50211/11.
04-15-2015
Ophelia AGARD, et al., respondents, v. CITY OF WHITE PLAINS, appellant, et al., defendants.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Peter A. Meisels and Joanna M. Topping of counsel), for appellant. Meagher & Meagher, P.C., White Plains, N.Y. (Christina M. Killerlane of counsel), for respondents.
Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains, N.Y. (Peter A. Meisels and Joanna M. Topping of counsel), for appellant.
Meagher & Meagher, P.C., White Plains, N.Y. (Christina M. Killerlane of counsel), for respondents.
PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Opinion In an action to recover damages for personal injuries, etc., the defendant City of White Plains appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated November 18, 2013, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant City of White Plains for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.
The plaintiff Ophelia Agard (hereinafter the injured plaintiff) allegedly was injured when she slipped and fell on ice in a roadway in the defendant City of White Plains. The injured plaintiff, and her husband suing derivatively, subsequently commenced this action against, among other defendants, the City, alleging negligence.Where, as here, a municipality has adopted a prior written notice law, it cannot be held liable for a defect within the scope of that law absent the requisite written notice, unless an exception to the requirement applies (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Masotto v. Village of Lindenhurst, 100 A.D.3d 718, 718, 954 N.Y.S.2d 557 ; Moncrieffe v. City of White Plains, 115 A.D.3d 915, 982 N.Y.S.2d 579 ; Charter of City of White Plains § 277). Where such a municipality establishes that it lacked prior written notice of an alleged defect, the burden shifts to the plaintiff to demonstrate the applicability of one of the two recognized exceptions to the prior written notice requirement (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Hanover Ins. Co. v. Town of Pawling, 94 A.D.3d 1055, 943 N.Y.S.2d 152 ; Kiszenik v. Town of Huntington, 70 A.D.3d 1007, 1007–1008, 895 N.Y.S.2d 208 ). “The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property” (Forbes v. City of New York, 85 A.D.3d 1106, 1107, 926 N.Y.S.2d 309 ; see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Hanover Ins. Co. v. Town of Pawling, 94 A.D.3d at 1056, 943 N.Y.S.2d 152 ).
In support of its motion for summary judgment, the City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the alleged icy condition, as required by section 277 of the Charter of the City of White Plains. Contrary to the Supreme Court's determination, the plaintiffs failed to raise a triable issue of fact as to whether the City's record-keeping, as it concerned its prior written notice logbook, was reliable, or whether the City created the icy condition through an affirmative act of negligence. The City's codefendants, Richard L. Spitz and Donna M. Spitz, also failed to raise a triable issue of fact with respect to the cross claims.
Accordingly, the Supreme Court should have granted the City's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.