Opinion
2013-03-6
Timothy CONNER, appellant, v. CITY OF NEW YORK, respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Susan Paulson of counsel; Daniel Fishman on the brief), for respondent.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo and Susan Paulson of counsel; Daniel Fishman on the brief), for respondent.
WILLIAM F. MASTRO, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), entered January 31, 2012, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff, a former Sergeant with the New York City Police Department, commenced this action to recover damages for injuries he allegedly incurred while on duty and responding to an emergency call. The plaintiff alleged in his notice of claim and complaint that he fell as a result of tripping in a pothole, adjacent to a manhole, in the roadway in front of certain premises in Brooklyn. The plaintiff alleged that his injuries were a direct result of the negligence and carelessness of the City of New York in allowing or permitting the dangerous condition to exist. Following the completion of discovery, the City moved for summary judgment dismissing the complaint on the ground that it lacked prior written of the dangerous condition, as required under Administrative Code of the City of New York § 7–201(c). The Supreme Court granted the motion, concluding that the City met its prima facie burden of demonstrating that there had been no compliance with the prior written notice law, and that the plaintiff, in opposition, failed to present any evidence to the contrary or that the City made special use of the location of the allegedly dangerous roadway condition.
Where a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries arising from a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior 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;Miller v. Village of E. Hampton, 98 A.D.3d 1007, 951 N.Y.S.2d 171;De La Reguera v. City of Mount Vernon, 74 A.D.3d 1127, 904 N.Y.S.2d 108;Schleif v. City of New York, 60 A.D.3d 926, 875 N.Y.S.2d 259). The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a 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;Poirier v. City of Schenectady, 85 N.Y.2d 310, 314–315, 624 N.Y.S.2d 555, 648 N.E.2d 1318;Loughlin v. Town of N. Hempstead, 84 A.D.3d 1035, 923 N.Y.S.2d 200;De La Reguera v. City of Mount Vernon, 74 A.D.3d 1127, 904 N.Y.S.2d 108).
Contrary to the plaintiff's contention, the City established its prima facie entitlement to judgment as a matter of law by presenting evidence that it had not received prior written notice of the condition that allegedly caused the plaintiff's injuries ( see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129, 927 N.Y.S.2d 304, 950 N.E.2d 908;Boggi v. City of White Plains, 97 A.D.3d 773, 948 N.Y.S.2d 562;Pennamen v. Town of Babylon, 86 A.D.3d 599, 927 N.Y.S.2d 164). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City actually was provided with timely prior written notice or whether the special use exception was applicable ( see Oboler v. City of New York, 8 N.Y.3d 888, 890, 832 N.Y.S.2d 871, 864 N.E.2d 1270;Melendez v. City of New York, 72 A.D.3d 913, 898 N.Y.S.2d 868;Schleif v. City of New York, 60 A.D.3d at 928, 875 N.Y.S.2d 259;ITT Hartford Ins. Co. v. Village of Ossining, 257 A.D.2d 606, 684 N.Y.S.2d 258), and the plaintiff did not address the affirmative act exception to the prior written notice law.
The plaintiff's remaining contentions either are without merit or improperly raised for the first time on appeal.
Accordingly, the Supreme Court properly granted the City's motion for summary judgment dismissing the complaint.