Opinion
844 CA 22-00212
02-03-2023
Isabel M. COFFEY and Calvin Coffey, Plaintiffs-Respondents, v. CITY OF CORNING, Defendant-Appellant.
GERBER CIANO KELLY BRADY LLP, GARDEN CITY (BRENDAN T. FITZPATRICK OF COUNSEL), FOR DEFENDANT-APPELLANT. WELCH, DONLON & CZARPLES, PLLC, CORNING (MEGAN K. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
GERBER CIANO KELLY BRADY LLP, GARDEN CITY (BRENDAN T. FITZPATRICK OF COUNSEL), FOR DEFENDANT-APPELLANT.
WELCH, DONLON & CZARPLES, PLLC, CORNING (MEGAN K. COLLINS OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: SMITH, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the amended complaint is dismissed.
Memorandum: Plaintiffs commenced this negligence action seeking damages for injuries that plaintiff Isabel M. Coffey allegedly sustained when she slipped and fell on ice in a parking lot owned and operated by defendant. Defendant moved for summary judgment dismissing the amended complaint, contending, among other things, that it had not received prior written notice of the allegedly dangerous condition, as required by the Code of the City of Corning § 200-9. Defendant now appeals from an order denying the motion. We reverse.
Where a municipality meets its initial burden on its summary judgment motion by establishing that it had not received prior written notice as required by its prior notification law (see DeMaioribus v. Town of Cheektowaga , 188 A.D.3d 1643, 1643, 135 N.Y.S.3d 727 [4th Dept. 2020] ), the burden shifts to plaintiffs to show that an issue of fact exists whether defendant had received prior written notice or " ‘to demonstrate the applicability of one of [the] two recognized exceptions to the [prior written notice] 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’ " ( Hume v. Town of Jerusalem , 114 A.D.3d 1141, 1141-1142, 980 N.Y.S.2d 183 [4th Dept. 2014], quoting Yarborough v. City of New York , 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ; see Groninger v. Village of Mamaroneck , 17 N.Y.3d 125, 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 [2011] ).
We agree with defendant that it met its initial burden of showing that it had not received the requisite prior written notice and that plaintiffs failed to raise a triable issue of fact with respect to that issue. Moreover, the evidence submitted by plaintiffs failed to raise a triable issue of fact whether defendant affirmatively created the dangerous condition through an act of negligence (see generally Brockway v. County of Chautauqua , 187 A.D.3d 1674, 1674-1675, 133 N.Y.S.3d 370 [4th Dept. 2020] ) or "derive[d] a special benefit from th[e] property unrelated to the public use" ( Poirier v. City of Schenectady , 85 N.Y.2d 310, 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318 [1995] ; see generally D'Antuono v. Village of Saugerties , 101 A.D.3d 1331, 1332-1333, 956 N.Y.S.2d 264 [3d Dept. 2012] ; Loiaconi v. Village of Tarrytown , 36 A.D.3d 864, 865, 829 N.Y.S.2d 191 [2d Dept. 2007] ). Therefore plaintiffs failed to raise a triable issue of fact whether either exception to the prior written notice rule applies (see Duffel v. City of Syracuse , 103 A.D.3d 1235, 1235-1236, 958 N.Y.S.2d 916 [4th Dept. 2013] ). We additionally conclude that there is no merit to plaintiffs’ assertion "that the [City]’s prior written notice statute is inapplicable because the [City] acted in a proprietary capacity" ( Belluck v. Town of North Hempstead , 193 A.D.3d 669, 670, 141 N.Y.S.3d 913 [2d Dept. 2021] ; see Creutzberger v. County of Suffolk , 140 A.D.3d 915, 916-917, 33 N.Y.S.3d 438 [2d Dept. 2016] ; see generally Wittorf v. City of New York , 23 N.Y.3d 473, 480, 991 N.Y.S.2d 578, 15 N.E.3d 333 [2014] ).
Defendant's remaining contentions are moot in light of our determination.