Opinion
2019–10439 Index No. 5355/16
04-07-2021
Mona LEVY, et al., respondents, v. INCORPORATED VILLAGE OF EAST HAMPTON, appellant, et al., defendants.
Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby and Christi M. Kunzig of counsel), for appellant. Hogan & Cassell, LLP, Jericho, N.Y. (Michael Cassell of counsel), for respondents.
Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby and Christi M. Kunzig of counsel), for appellant.
Hogan & Cassell, LLP, Jericho, N.Y. (Michael Cassell of counsel), for respondents.
REINALDO E. RIVERA, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant Incorporated Village of East Hampton appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated July 16, 2019. The order denied the motion of the defendant Incorporated Village of East Hampton for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
On February 28, 2015, between 3:00 p.m. and 4:00 p.m., the plaintiff Mona Levy allegedly slipped and fell on snow, ice, and slush on a sidewalk located within the defendant Incorporated Village of East Hampton. The Village was responsible for removing snow and ice from the subject sidewalk. The plaintiff, and her husband suing derivatively, commenced this action against the Village and others. The Supreme Court denied the Village's motion for summary judgment dismissing the complaint insofar as asserted against it. The Village appeals.
"A municipality that has enacted a prior written notice provision may not be subjected to liability for injuries caused by a [defective or] 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" ( Seegers v. Village of Mineola, 161 A.D.3d 910, 910, 77 N.Y.S.3d 86 [internal quotation marks omitted]; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ). Insofar as relevant to this appeal, "an exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence" ( Piazza v. Volpe, 153 A.D.3d 563, 564, 59 N.Y.S.3d 466 ; see Miller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171 ). " ‘The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by the plaintiff[ ] in the pleadings and bills of particulars’ " ( Larenas v. Incorporated Vil. of Garden City, 143 A.D.3d 777, 778, 39 N.Y.S.3d 204, quoting Lima v. Village of Garden City, 131 A.D.3d 947, 948, 16 N.Y.S.3d 249 ; see Brower v. County of Suffolk, 185 A.D.3d 774, 775, 127 N.Y.S.3d 145 ). However, where the moving defendant is an entity against whom an action may not be commenced absent the filing of a notice of claim, "a [plaintiff] may not add a new theory of liability which was not included in the notice of claim" ( Semprini v. Village of Southampton, 48 A.D.3d 543, 544, 852 N.Y.S.2d 208 ; see Rojas v. Hazzard, 171 A.D.3d 820, 821, 97 N.Y.S.3d 177 ).
Contrary to the Village's contention, the plaintiffs’ bill of particulars did not assert a new theory of liability which was not included in the notice of claim (cf. Burton v. Village of Greenport, 162 A.D.3d 968, 80 N.Y.S.3d 383 ; Steins v. Incorporated Vil. of Garden City, 127 A.D.3d 957, 959, 7 N.Y.S.3d 419 ; Semprini v. Village of Southampton, 48 A.D.3d at 544, 852 N.Y.S.2d 208 ), and to establish its entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, that it did not have prior written notice of the alleged hazardous condition that allegedly caused Levy's fall and that it did not create the alleged hazardous condition (see Kabia v. Town of Yorktown, 175 A.D.3d 1395, 1396, 108 N.Y.S.3d 178 ; Lima v. Village of Garden City, 131 A.D.3d at 948, 16 N.Y.S.3d 249 ). The Village demonstrated, prima facie, that it did not have prior written notice of the alleged hazardous condition (see Miller v. Village of E. Hampton, 98 A.D.3d at 1008, 951 N.Y.S.2d 171 ). However, the Village failed to address the plaintiffs’ allegation that it affirmatively created the alleged hazardous condition. Hence, the Village failed to meet its initial burden as the movant (see Kabia v. Town of Yorktown, 175 A.D.3d at 1396, 108 N.Y.S.3d 178 ).
Accordingly, the Supreme Court properly denied the Village's motion for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.