Opinion
2012-12-28
Romana MATTIOLI, Plaintiff–Respondent, v. TOWN OF GREECE, Defendant–Appellant.
Appeal from a judgment and order (one paper) of the Supreme Court, Monroe County (John J. Ark, J.), entered December 28, 2011. The judgment and order, inter alia, denied that part of the motion of defendant for summary judgment dismissing the complaint. Gallo & Iacovangelo, LLP, Rochester (Anthony M. Sortino of Counsel), for Defendant–Appellant. Law Office of Frank G. Montemalo, PLLC, Rochester (Frank G. Montemalo of Counsel), for Plaintiff–Respondent.
Appeal from a judgment and order (one paper) of the Supreme Court, Monroe County (John J. Ark, J.), entered December 28, 2011. The judgment and order, inter alia, denied that part of the motion of defendant for summary judgment dismissing the complaint.
Gallo & Iacovangelo, LLP, Rochester (Anthony M. Sortino of Counsel), for Defendant–Appellant. Law Office of Frank G. Montemalo, PLLC, Rochester (Frank G. Montemalo of Counsel), for Plaintiff–Respondent.
MEMORANDUM:
Plaintiff commenced this action seeking damages for losses she sustained when her real and personal property was damaged in a flood that allegedly occurred when a retention pond overflowed after a rainstorm in 2008. Defendant appeals from a judgment and order that, inter alia, denied that part of its motion for summary judgment dismissing the complaint. Contrary to defendant's contention, Supreme Court properly denied that part of the motion. Although defendant met its initial burden on the motion by submitting evidence establishing that it had not received prior written notice of the alleged defect as required by defendant's Town Code ( see generally Davison v. City of Buffalo, 96 A.D.3d 1516, 1518, 947 N.Y.S.2d 702), plaintiff raised a triable issue of fact whether defendant had received such notice ( see generally Cruzado v. City of New York, 80 A.D.3d 537, 538, 915 N.Y.S.2d 548). In addition, plaintiff raised “a triable issue of fact concerning the applicability of [an] exception to the prior written notice requirement, i.e., whether [defendant] created the allegedly dangerous condition ‘through an affirmative act of negligence’ ” ( Smith v. City of Syracuse, 298 A.D.2d 842, 842–843, 747 N.Y.S.2d 876;see Jannicelli v. City of Schenectady, 90 A.D.3d 1206, 1207, 933 N.Y.S.2d 917).
It is hereby ORDERED that the judgment and order so appealed from is unanimously affirmed without costs.