Opinion
2014-02-7
Havah HUME, Plaintiff–Respondent, v. TOWN OF JERUSALEM, Defendant–Appellant.
Petrone & Petrone, P.C., Williamsville, Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Christine Gasser of Counsel), for Defendant–Appellant. Hall and Karz, Canandaigua (Peter Rolph of Counsel), for Plaintiff–Respondent.
Petrone & Petrone, P.C., Williamsville, Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Christine Gasser of Counsel), for Defendant–Appellant.Hall and Karz, Canandaigua (Peter Rolph of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI AND WHALEN, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries she allegedly sustained when her right leg fell into a hole on the shoulder of the gravel road located approximately 75 to 100 feet south of the driveway to her residence. At the time of the accident, plaintiff was watching defendant's highway crew clean out the ditches around the area of a culvert that was going to be replaced the following week. According to plaintiff, the gravel along the edge of the road where she was walking suddenly gave way and caused her to slide down the road into a hole. Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint. Defendant met its burden by establishing that it did not receive prior written notice of the dangerous condition as required by its local law ( see Weinfeld v. J. Robert Roth Assoc. [Appeal No. 2], 177 A.D.2d 977, 978, 578 N.Y.S.2d 312). The burden thus shifted to 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” ( Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873, citing Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104). As limited by her brief on appeal, plaintiff contends only that defendant had actual notice of the allegedly dangerous condition, thus abandoning her contention before the court that defendant created the condition ( see Gilbert v. Evangelical Lutheran Church in Am., 43 A.D.3d 1287, 1288, 842 N.Y.S.2d 644,lv. denied9 N.Y.3d 815, 849 N.Y.S.2d 31, 879 N.E.2d 171;see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745). However, contrary to the contention of plaintiff and the court's determination, actual notice of a defect is not an exception to the prior written notice requirement ( see Minew v. City of New York, 106 A.D.3d 1060, 1061–1062, 966 N.Y.S.2d 476;Palo v. Town of Fallsburg, 101 A.D.3d 1400, 1401, 956 N.Y.S.2d 648,lv. denied20 N.Y.3d 862, 2013 WL 1197248;Rile v. City of Syracuse, 56 A.D.3d 1270, 1271, 867 N.Y.S.2d 823;Oswald v. City of Niagara Falls, 13 A.D.3d 1155, 1157, 787 N.Y.S.2d 757).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the complaint is dismissed.