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Berner v. Town of Huntington

Appellate Division of the Supreme Court of New York, Second Department
Apr 7, 2003
304 A.D.2d 513 (N.Y. App. Div. 2003)

Opinion

2002-03812, 2002-08814

Submitted February 27, 2003.

April 7, 2003.

In an action to recover damages for personal injuries, etc., the defendant appeals from (1) an order of the Supreme Court, Suffolk County (Lifson, J.), dated April 4, 2002, which denied its motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated August 13, 2002, which, upon reargument, adhered to the original determination.

John J. Leo, Town Attorney, Huntington, N.Y. (Margaret L. Pezzino of counsel), for appellant.

Tartamella, Tartamella Fresolone, Hauppauge, N.Y. (Robert A. Bruno of counsel), for respondents.

Before: MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, WILLIAM D. FRIEDMANN, HOWARD MILLER, JJ.


DECISION ORDER

ORDERED that the appeal from the order dated August 13, 2002, is dismissed as abandoned; and it is further,

ORDERED that the order dated April 4, 2002, is reversed, on the law, the motion is granted, and the complaint is dismissed; and it is further,

ORDERED that one bill of costs is awarded to the appellant.

Huntington Town Code, article V, § 173-18 requires that written notice of a defective sidewalk or street condition be given to the Town Clerk or Superintendent of Highways before an action may be maintained against the Town to recover damages for injuries. Written notice of the defective curb where the plaintiff Tadeusz Berner allegedly fell was not given to the Town. Contrary to the conclusion of the Supreme Court, the Town's actual notice of the defective condition did not satisfy the prior written notice requirement (see Anderson v. Town of Smithtown, 292 A.D.2d 406; Harvey v. Monteforte, 292 A.D.2d 420). The only exceptions to the requirement which have been recognized by the Court of Appeals are where the municipality created the defect or where a special use confers a special benefit on the municipality (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474). Neither of those exceptions is applicable in this case and, consequently, the Supreme Court should have granted the Town's motion for summary judgment dismissing the complaint.

In light of our determination, it is unnecessary to address the Town's remaining contention.

ALTMAN, J.P., FLORIO, FRIEDMANN and H. MILLER, JJ., concur.


Summaries of

Berner v. Town of Huntington

Appellate Division of the Supreme Court of New York, Second Department
Apr 7, 2003
304 A.D.2d 513 (N.Y. App. Div. 2003)
Case details for

Berner v. Town of Huntington

Case Details

Full title:TADEUSZ BERNER, ET AL., respondents, v. TOWN OF HUNTINGTON, appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 7, 2003

Citations

304 A.D.2d 513 (N.Y. App. Div. 2003)
757 N.Y.S.2d 585

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