Opinion
2019-11389 Index No. 611046/17
04-07-2021
Raymond E. BELLUCK, appellant, v. TOWN OF NORTH HEMPSTEAD, respondent, et al., defendants.
Belluck & Fox, LLP, New York, N.Y. (Kristina M. Georgiou of counsel), for appellant.
Belluck & Fox, LLP, New York, N.Y. (Kristina M. Georgiou of counsel), for appellant.
WILLIAM F. MASTRO, A.P.J., SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), dated September 9, 2019. The order granted the motion of the defendant Town of North Hempstead for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, without costs or disbursements.
The plaintiff commenced this action against, among others, the defendant Town of North Hempstead to recover damages that he allegedly sustained when he tripped and fell on a height differential between a concrete sidewalk and an asphalt walkway of an abutting premises owned by the Town. The Town moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it did not have prior written notice of the alleged defect. The Supreme Court granted the motion, and the plaintiff appeals.
"Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a 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" ( Cuomo v. Incorporated Vil. of Garden City, 188 A.D.3d 987, 988, 132 N.Y.S.3d 672 [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 ; Loghry v. Village of Scarsdale, 149 A.D.3d 714, 715, 53 N.Y.S.3d 318 ). The Town established, prima facie, that it did not have prior written notice of the alleged uneven condition by submitting, inter alia, the affidavit of its Village Clerk and the affidavit of its Superintendent of Highways, who averred that they searched the appropriate records and found no prior written notice of a defective condition corresponding to the condition alleged by the plaintiff (see D.D. v. Incorporated Vil. of Freeport, 186 A.D.3d 795, 796, 127 N.Y.S.3d 764 ; Wilson v. Incorporated Vil. of Hempstead, 120 A.D.3d 665, 991 N.Y.S.2d 651 ). In opposition, the plaintiff failed to raise a triable issue of fact. There is no merit to the plaintiff's contention that the Town's prior written notice statute is inapplicable because the Town acted in a proprietary capacity (see Wittorf v. City of New York, 23 N.Y.3d 473, 480, 991 N.Y.S.2d 578, 15 N.E.3d 333 ; Creutzberger v. County of Suffolk, 140 A.D.3d 915, 917, 33 N.Y.S.3d 438 ).
Accordingly, the Supreme Court properly granted the Town's motion for summary judgment dismissing the complaint insofar as asserted against it.
MASTRO, A.P.J., HINDS–RADIX, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.