Opinion
2022–04599 Index No. 51623/19
10-11-2023
Cynthia CANADAY, appellant, v. VILLAGE OF WAPPINGERS FALLS, respondent.
Hegge & Confusione, LLC, New York, NY (Michael Confusione of counsel), for appellant. McGivney, Kluger, Clark & Intoccia, P.C. (Gary J. Intoccia and Gerber Ciano Kelly Brady, LLP, Garden City, N.Y. [Brendan T. Fitzpatrick and Brian W. McElhenny ], of counsel), for respondent.
Hegge & Confusione, LLC, New York, NY (Michael Confusione of counsel), for appellant.
McGivney, Kluger, Clark & Intoccia, P.C. (Gary J. Intoccia and Gerber Ciano Kelly Brady, LLP, Garden City, N.Y. [Brendan T. Fitzpatrick and Brian W. McElhenny ], of counsel), for respondent.
ANGELA G. IANNACCI, J.P., PAUL WOOTEN, HELEN VOUTSINAS, LILLIAN WAN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Michael G. Hayes, J.), dated June 8, 2022. The order granted the defendant's motion for summary judgment dismissing the amended complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action against the defendant to recover damages for personal injuries that she allegedly sustained when she tripped and fell on a corner sidewalk ramp, which she contended was too steep. The defendant moved for summary judgment dismissing the amended complaint. In an order dated June 8, 2022, the Supreme Court granted the defendant's motion. The plaintiff appeals.
When a municipality has adopted a prior written notice law, the municipality "cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies" ( Sanon v. MTA Long Is. R.R., 203 A.D.3d 773, 775, 164 N.Y.S.3d 175 ). Where such a local law is in effect, "[p]rior written notice of a defective condition is a condition precedent to maintaining an action against a municipality" ( Schiller v. Town of Ramapo, 202 A.D.3d 1022, 1022, 164 N.Y.S.3d 146 ). To be entitled to summary judgment, the municipality must first establish that it lacked prior written notice of the alleged defect (see Smith v. City of New York, 210 A.D.3d 53, 69, 175 N.Y.S.3d 529 ). Once that showing is made, " ‘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’ " ( id. at 62, 175 N.Y.S.3d 529, quoting Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Schaum v. City of New York, 216 A.D.3d 691, 692, 187 N.Y.S.3d 108 ).
Here, the defendant met its burden of establishing that it did not receive prior written notice of the alleged defective condition, thereby shifting to the plaintiff the burden of demonstrating either that a question of fact existed in that regard or that one of the recognized exceptions applied (see Village of Wappingers Falls Code § 132 – 5 ; Kolenda v. Incorporated Vil. of Garden City, 215 A.D.3d 647, 187 N.Y.S.3d 669 ; Gunnells v. Town of Brookhaven, 213 A.D.3d 744, 745, 183 N.Y.S.3d 519 ; see also Wilson v. Incorporated Vil. of Freeport, 212 A.D.3d 870, 871, 182 N.Y.S.3d 225 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant affirmatively created the alleged condition that caused the plaintiff to fall (see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ).
In light of our determination, we need not reach the merits of the defendant's remaining contention. Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the amended complaint.
IANNACCI, J.P., WOOTEN, VOUTSINAS and WAN, JJ., concur.