Opinion
2019–08167 Index No. 610023/17
08-26-2020
D.D., etc., respondent, v. INCORPORATED VILLAGE OF FREEPORT, appellant.
Gallo Vitucci Klar LLP, Woodbury, N.Y. (Marc C. Pottak of counsel), for appellant. Zemsky and Salomon PC, Hempstead, N.Y. (Mitchell B. Koval of counsel), for respondent.
Gallo Vitucci Klar LLP, Woodbury, N.Y. (Marc C. Pottak of counsel), for appellant.
Zemsky and Salomon PC, Hempstead, N.Y. (Mitchell B. Koval of counsel), for respondent.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Denise L. Sher, J.), entered June 6, 2019. The order denied the defendant's 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.
On January 27, 2017, the plaintiff allegedly was injured when he tripped and fell on a defect in a sidewalk while walking along a public sidewalk adjacent to Municipal Parking Lot #13 within the defendant Incorporated Village of Freeport. The plaintiff commenced this action against the defendant, and, thereafter, the defendant moved for summary judgment dismissing the complaint on the ground that it had not received prior written notice of the alleged defect. The Supreme Court denied the motion, and the defendant appeals.
" ‘A municipality that has adopted a "prior written notice law" 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’ " ( Betz v. Town of Huntington, 106 A.D.3d 1041, 1041, 966 N.Y.S.2d 471, quoting Forbes v. City of New York, 85 A.D.3d 1106, 1107, 926 N.Y.S.2d 309 ). There are two exceptions to the prior written notice requirement: where an affirmative act of negligence by the municipality creates the defect; or where a special use of the property confers a special benefit upon the municipality (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ).
Here, the defendant made a prima facie showing of entitlement to judgment as a matter of law by providing the affidavit of the Village Clerk, which indicated that she conducted a records search and found no prior written notice of a defective condition at the location alleged by the plaintiff (see Beiner v. Village of Scarsdale, 149 A.D.3d 679, 51 N.Y.S.3d 578 ). Furthermore, the defendant established, prima facie, that it did not create the allegedly defective condition through an affirmative act of negligence (see Abreu–Lopez v. Incorporated Vil. of Freeport, 142 A.D.3d 515, 516, 36 N.Y.S.3d 492 ), and did not derive a special benefit from a special use of the sidewalk at the location where the plaintiff fell (see Garcia v. Thomas, 173 A.D.3d 842, 102 N.Y.S.3d 707 ; Bogorova v. Incorporated Vil. of Atl. Beach, 51 A.D.3d 840, 858 N.Y.S.2d 349 ). In opposition, the plaintiff failed to raise a triable issue of fact with regard to the applicability of either the affirmative negligence exception (see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Doherty v. Town of Lewisboro, 154 A.D.3d 737, 739, 63 N.Y.S.3d 62 ; Schleif v. City of New York, 60 A.D.3d 926, 928, 875 N.Y.S.2d 259 ) or the special use exception (see Williams v. City of New York, 134 A.D.3d 809, 810, 20 N.Y.S.3d 628 ; De La Reguera v. City of Mount Vernon, 74 A.D.3d 1127, 1127–1128, 904 N.Y.S.2d 108 ; Bogorova v. Incorporated Vil. of Atl. Beach, 51 A.D.3d at 841, 858 N.Y.S.2d 349 ). Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
In light of our determination, we need not reach the defendant's remaining contention.
MASTRO, J.P., DILLON, CHRISTOPHER and WOOTEN, JJ., concur.