Opinion
2014-04-2
Vivian SIMON, respondent, v. INCORPORATED VILLAGE OF LYNBROOK, appellant.
Siler & Ingber, LLP, Mineola, N.Y. (Maria Nanis of counsel), for appellant. The Noll Law Firm, P.C., Syosset, N.Y. (Richard E. Noll of counsel), for respondent.
Siler & Ingber, LLP, Mineola, N.Y. (Maria Nanis of counsel), for appellant. The Noll Law Firm, P.C., Syosset, N.Y. (Richard E. Noll of counsel), for respondent.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and HECTOR D. LASALLE, JJ.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered December 19, 2012, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
While walking on a public sidewalk, the plaintiff allegedly tripped on a defective sidewalk condition and fell. She then commenced this action against the defendant, the municipality in which the sidewalk was located. The defendant moved for summary judgment, contending that it lacked prior written notice of the allegedly defective condition. The Supreme Court denied the motion.
Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained sidewalk unless it has received written notice of the defect, or an exception to the written notice 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;Salierno v. City of Mount Vernon, 107 A.D.3d 971, 966 N.Y.S.2d 901;Carlucci v. Village of Scarsdale, 104 A.D.3d 797, 961 N.Y.S.2d 318). “The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality” (Avellino v. City of New York, 107 A.D.3d 836, 837, 968 N.Y.S.2d 114;see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Poirier v. City of Schenectady, 85 N.Y.2d 310, 314–315, 624 N.Y.S.2d 555, 648 N.E.2d 1318;Miller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171).
Here, the defendant established its entitlement to judgment as a matter of law by demonstrating, prima facie, that it lacked prior written notice of the allegedly defective condition ( see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Oliveri v. Village of Greenport, 93 A.D.3d 773, 940 N.Y.S.2d 675;Rodriguez v. Town of Islip, 89 A.D.3d 1077, 933 N.Y.S.2d 601). In opposition, the plaintiff failed to raise a triable issue of fact. The defendant's actual or constructive notice of the allegedly defective condition does not satisfy the prior written notice requirement ( see Amabile v. City of Buffalo, 93 N.Y.2d at 475–476, 693 N.Y.S.2d 77, 715 N.E.2d 104;Magee v. Town of Brookhaven, 95 A.D.3d 1179, 945 N.Y.S.2d 177;Braun v. Vil. of New Sq., 3 A.D.3d 513, 514, 770 N.Y.S.2d 743).
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.