Opinion
2014-04945, Index No. 3174/12.
2015-04-29
Irena FRYC–CANNELLA, appellant, v. TOWN OF NORTH HEMPSTEAD, respondent.
Melcer Newman, PLLC, New York, N.Y. (Roger Rodriguez of counsel), for appellant. Elizabeth D. Botwin, Town Attorney, Manhasset, N.Y. (Lorienton N.A. Palmer and Brittney C. Russell of counsel), for respondent.
Melcer Newman, PLLC, New York, N.Y. (Roger Rodriguez of counsel), for appellant. Elizabeth D. Botwin, Town Attorney, Manhasset, N.Y. (Lorienton N.A. Palmer and Brittney C. Russell of counsel), for respondent.
RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Janowitz, J.), entered April 2, 2014, which granted the defendant's motion for summary judgment dismissing the complaint and denied her cross motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
On February 9, 2011, the plaintiff allegedly tripped and fell on an elevated cement sidewalk flag in front of her home in New Hyde Park, in the Town of North Hempstead.
Where, as here, a municipality has adopted a prior written notice law, it 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 ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104; Moncrieffe v. City of White Plains, 115 A.D.3d 915, 916, 982 N.Y.S.2d 579; Keating v. Town of Oyster Bay, 111 A.D.3d 604, 605, 974 N.Y.S.2d 271; Masotto v. Village of Lindenhurst, 100 A.D.3d 718, 718–719, 954 N.Y.S.2d 557; Albano v. Suffolk County, 99 A.D.3d 741, 741–742, 952 N.Y.S.2d 245). “Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” ( Miller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171).
Here, the defendant, the Town of North Hempstead, established its prima facie entitlement to judgment as a matter of law by demonstrating, insofar as relevant here, that it did not receive prior written notice of the condition that allegedly caused the plaintiff's injuries, and that it did not create a dangerous condition through an affirmative act of negligence ( see Keating v. Town of Oyster Bay, 111 A.D.3d at 605, 974 N.Y.S.2d 271). In opposition, the plaintiff failed to raise a triable issue of fact ( see Capobianco v. Mari, 272 A.D.2d 497, 708 N.Y.S.2d 428).
Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint and, for the same reasons, properly denied the plaintiff's cross motion for summary judgment on the issue of liability.