Opinion
2015-04-01
Joy MONACO, et al., plaintiffs-respondents, v. Gary T. HODOSKY, et al., defendants-respondents, Village of Bellport, appellant.
Siler & Ingber, LLP, Mineola, N.Y. (Maria Nanis of counsel), for appellant. Keegan & Keegan, Ross & Rosner, LLP, Patchogue, N.Y. (Daniel C. Ross of counsel), for plaintiffs-respondents.
Siler & Ingber, LLP, Mineola, N.Y. (Maria Nanis of counsel), for appellant. Keegan & Keegan, Ross & Rosner, LLP, Patchogue, N.Y. (Daniel C. Ross of counsel), for plaintiffs-respondents.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.
In an action to recover damages for personal injuries, etc., the defendant Village of Bellport appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.), dated March 26, 2014, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff Joy Monaco (hereinafter the plaintiff) allegedly tripped and fell over a defect in a sidewalk abutting premises owned by the defendants Gary T. Hodosky and Catherine A. Hodosky (hereinafter together the Hodosky defendants) in the defendant Village of Bellport. The plaintiff, and her husband suing derivatively, commenced this action against the Hodosky defendants and the Village. The complaint alleged that the Village had created the subject defect by negligently patching a prior defect in that part of the sidewalk. The Village moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, contending that it did not have prior written notice of the defect and that it did not create the alleged hazardous condition.
In support of the motion, the Village submitted a transcript of the deposition testimony of Gary T. Hodosky, who testified that the Village made repairs to the subject area of the sidewalk approximately one year before the alleged accident, and that after the repairs were made, that area of the sidewalk was in good condition. He also testified at his deposition that at the time of the accident, the accident site was in the same condition as when the repair was first made. The Village also submitted transcripts of the General Municipal Law § 50–h hearing testimony and the depositions of the plaintiffs, wherein they testified that the plaintiff fell due to a height difference of four to six inches between two concrete slabs. The Supreme Court denied the motion.
A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77, 715 N.E.2d 104; Simon v. Incorporated Vil. of Lynbrook, 116 A.D.3d 692, 983 N.Y.S.2d 308; Zielinski v. City of Mount Vernon, 115 A.D.3d 946, 982 N.Y.S.2d 531). Recognized exceptions to the prior written notice requirement exist where the municipality has created the defect through its affirmative negligence, or where a special use of the property has conferred a special benefit upon the municipality ( see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104; Avellino v. City of New York, 107 A.D.3d 836, 968 N.Y.S.2d 114; Miller v. Village of E. Hampton, 98 A.D.3d 1007, 951 N.Y.S.2d 171). The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition ( see Yarborough v. City of New York, 10 N.Y.3d 726, 853 N.Y.S.2d 261, 882 N.E.2d 873; Braver v. Village of Cedarhurst, 94 A.D.3d 933, 942 N.Y.S.2d 178; Pennamen v. Town of Babylon, 86 A.D.3d 599, 927 N.Y.S.2d 164; Hirasawa v. City of Long Beach, 57 A.D.3d 846, 870 N.Y.S.2d 96).
Where, as here, the plaintiffs alleged in their complaint that the Village created a defect by an affirmative act of negligence, the Village, in order to establish its prima facie entitlement to judgment as a matter of law, must demonstrate that it did not create the condition ( see Lipari v. Town of Oyster Bay, 116 A.D.3d 927, 928, 983 N.Y.S.2d 852). The Village failed to do so. The conflicting testimony submitted by the Village presented triable issues of fact as to whether the Village's alleged repair work affirmatively created the alleged hazardous condition that proximately caused the plaintiff to fall ( see Yarborough v. City of New York, 10 N.Y.3d 726, 853 N.Y.S.2d 261, 882 N.E.2d 873; Giaquinto v. Town of Hempstead, 106 A.D.3d 1049, 968 N.Y.S.2d 506; Pennamen v. Town of Babylon, 86 A.D.3d 599, 600, 927 N.Y.S.2d 164). Since the Village did not satisfy its initial burden as the movant, the burden never shifted to the plaintiffs to submit evidence sufficient to raise a triable issue of fact ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642). Accordingly, the Supreme Court properly denied the Village's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.