Opinion
No. CA 07-02479.
October 10, 2008.
Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.), entered August 29, 2007 in a personal injury action. The order denied the motion of defendant for, inter alia, summary judgment.
CONGDON, FLAHERTY, O'CALLAGHAN, REID, DONLON, TRAVIS FISHLINGER, UNIONDALE (GREGORY A. CASCINO OF COUNSEL), FOR DEFENDANT-APPELLANT.
Mc LANE, SMITH AND LASCURETTES, L.L.P., UTICA (MARK W. Mc LANE OF COUNSEL), FOR plaintiff's-RESPONDENTS.
Before: Smith, J.P., Lunn, Fahey and Peradotto, JJ.
It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is granted in part and the complaint is dismissed.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Eric Lincourt (plaintiff) when he slipped and fell on ice or snow on premises owned by defendant. We agree with defendant that Supreme Court erred in denying that part of its motion for summary judgment dismissing the complaint. Defendant's Local Law No. 5-84 provides in relevant part that prior written notice is a condition precedent to maintaining this action for damages for injuries "sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk or street." Where, as here, a municipality "establishes that it lacked prior written notice under [a local law], the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule — that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality" ( Yarborough v City of New York, 10 NY3d 726, 728; see De Rosso v Town of Poughkeepsie, 51 AD3d 966). Plaintiffs failed to raise a triable issue of fact whether either of the exceptions apply herein ( see Speach v Consolidated Edison Co. of N.Y., Inc., 52 AD3d 404; Gagnon v City of Saratoga Springs, 51 AD3d 1096, 1097-1098). Contrary to plaintiffs' further contention, the prior written notice requirement applies to the driveway where plaintiff fell, which was owned and maintained by defendant municipality ( see Murine v City of Utica, 39 AD3d 1237, 1238).