Opinion
2018-02026 Index No. 8587/15
04-07-2021
Jeanean CONGERO, et al., respondents, v. CITY OF GLEN COVE, appellant.
Sokoloff Stern LLP, Carle Place, N.Y. (Steven C. Stern, Kiera J. Meehan, and Stuart Diamond of counsel), for appellant. The Selvin Law Firm, PLLC, Seaford, N.Y. (Sabrina Taub and Louis A. Badolato of counsel), for respondents.
Sokoloff Stern LLP, Carle Place, N.Y. (Steven C. Stern, Kiera J. Meehan, and Stuart Diamond of counsel), for appellant.
The Selvin Law Firm, PLLC, Seaford, N.Y. (Sabrina Taub and Louis A. Badolato of counsel), for respondents.
REINALDO E. RIVERA, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Robert A. Bruno, J.), entered January 11, 2018. The order denied the defendant's motion for summary judgment dismissing the complaint and granted the plaintiffs' cross motion for leave to amend the notice of claim.
ORDERED that the order is reversed, on the law, with costs, the defendant's motion for summary judgment dismissing the complaint is granted, and the plaintiffs' cross motion for leave to amend the notice of claim is denied.
The plaintiff Jeanean Congero allegedly slipped on ice on the third level of a municipal parking garage owned by the defendant, City of Glen Clove. She and her husband, the plaintiff Cary Congero, served a notice of claim upon the defendant alleging that it negligently allowed the ice to form by failing to maintain a drainage pipe. They did not allege any affirmative negligence on the defendant's part. The plaintiffs subsequently commenced this personal injury action against the defendant by summons and complaint dated September 9, 2015. The complaint reiterated the allegations made in the notice of claim.
The defendant moved for summary judgment dismissing the complaint on the ground that it lacked prior written notice of the alleged dangerous condition. The plaintiffs opposed the motion and cross-moved pursuant to General Municipal Law § 50–e(6) for leave to amend the notice of claim. In relevant part, the plaintiffs sought to add allegations that the defendant created the icy condition at issue. In an order entered January 11, 2018, the Supreme Court denied the defendant's motion and granted the plaintiffs' cross motion. The defendant appeals. We reverse.
The Supreme Court should have denied the plaintiffs' cross motion for leave to amend the notice of claim. " ‘A plaintiff seeking to recover in tort against a municipality must serve a notice of claim to enable authorities to investigate, collect evidence and evaluate the merits of the claim’ " ( I.T.K. v. Nassau Boces Educ. Found., Inc., 177 A.D.3d 962, 963, 113 N.Y.S.3d 726, quoting Lipani v. Hiawatha Elementary Sch., 153 A.D.3d 1247, 1248, 61 N.Y.S.3d 582 ). " ‘A notice of claim must set forth, inter alia, the nature of the claim, and the time, place, and manner in which the claim arose’ " ( I.T.K. v. Nassau Boces Educ. Found., Inc., 177 A.D.3d at 963, 113 N.Y.S.3d 726, quoting Lipani v. Hiawatha Elementary Sch., 153 A.D.3d at 1248, 61 N.Y.S.3d 582 ). "Under General Municipal Law § 50–e(6), ‘[a] notice of claim may be amended only to correct good faith and nonprejudicial technical mistakes, omissions, or defects, not to substantively change the nature of the claim or the theory of liability’ " ( I.T.K. v. Nassau Boces Educ. Found., Inc., 177 A.D.3d at 963, 113 N.Y.S.3d 726, quoting Matter of Johnson v. County of Suffolk, 167 A.D.3d 742, 743, 90 N.Y.S.3d 84 ; see General Municipal Law § 50–e[6] ). Here, contrary to the court's determination, the proposed amendment to the notice of claim was not to correct a technical mistake, defect, or omission within the meaning of General Municipal Law § 50–e(6), but rather, improperly sought "to assert a new theory of affirmative negligence several years after the ... applicable limitations period" ( Burton v. Village of Greenport, 162 A.D.3d 968, 970, 80 N.Y.S.3d 383 ; see Aleksandrova v. City of New York, 151 A.D.3d 427, 428, 52 N.Y.S.3d 866 ; Semprini v. Village of Southampton, 48 A.D.3d 543, 545, 852 N.Y.S.2d 208 ).
The Supreme Court also should have granted the defendant's motion for summary judgment dismissing the complaint. "Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies" ( Palka v. Village of Ossining, 120 A.D.3d 641, 641, 992 N.Y.S.2d 273 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ). Contrary to the plaintiffs' contention, the requirement in the defendant's Charter "that there be prior written notice of a defect in a parking garage in order to maintain an action against the [defendant] complies with General Municipal Law § 50–e(4)" ( Peters v. City of White Plains, 58 A.D.3d 824, 825, 872 N.Y.S.2d 502 ; see Walker v. Incorporated Vil. of Freeport, 52 A.D.3d 697, 860 N.Y.S.2d 188 ), and it applies to the icy condition here (see Glen Cove City Charter § C4–4[B]; Medugno v. City of Glen Cove, 279 A.D.2d 510, 511–512, 718 N.Y.S.2d 881 ).
The defendant satisfied its prima facie burden by establishing that it did not have prior written notice of the icy condition or the alleged defective drainage pipe on the third level of the garage (see Brower v. County of Suffolk, 185 A.D.3d 774, 776, 127 N.Y.S.3d 145 ). The defendant also established that the notice of claim failed to allege that any exception to the prior written notice rule applied here (see Steins v. Incorporated Vil. of Garden City, 127 A.D.3d 957, 959, 7 N.Y.S.3d 419 ). The plaintiffs' evidence in opposition concerning its improper assertion of the affirmative negligence exception to the prior written notice rule (see Methal v. City of New York, 116 A.D.3d 743, 744, 984 N.Y.S.2d 71 ) failed to raise a triable issue of fact (see K.B. v. City of New York, 166 A.D.3d 744, 745–746, 88 N.Y.S.3d 549 ). The defendant was therefore entitled to summary judgment dismissing the complaint (see O'Connor v. Huntington U.F.S.D., 87 A.D.3d 571, 571–572, 929 N.Y.S.2d 743 ).
The parties' remaining contentions have been rendered academic in light of our determination.
RIVERA, J.P., CONNOLLY, BRATHWAITE NELSON and CHRISTOPHER, JJ., concur.