Opinion
12-16-2015
Anthony PIPITONE, respondent, v. MINEOLA REALTY ASSOCIATES, et al., defendants, Town of North Hempstead, appellant.
Elizabeth D. Botwin, Town Attorney, Manhasset, N.Y. (Lorienton N.A. Palmer and Brittney Russell of counsel), for appellant. Mallilo & Grossman, Flushing, N.Y. (John S. Manessis of counsel), for respondent.
Elizabeth D. Botwin, Town Attorney, Manhasset, N.Y. (Lorienton N.A. Palmer and Brittney Russell of counsel), for appellant.
Mallilo & Grossman, Flushing, N.Y. (John S. Manessis of counsel), for respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the defendant Town of North Hempstead appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Bruno, J.), dated February 28, 2014, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Town of North Hempstead for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.
A municipality that has adopted a prior written notice statute cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies (see Poirier v. City of Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555, 648 N.E.2d 1318 ; Masotto v. Village of Lindenhurst, 100 A.D.3d 718, 718, 954 N.Y.S.2d 557 ; Hanover Ins. Co. v. Town of Pawling, 94 A.D.3d 1055, 1056, 943 N.Y.S.2d 152 ; Forbes v. City of New York, 85 A.D.3d 1106, 1107, 926 N.Y.S.2d 309 ). "Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it" (Masotto v. Village of Lindenhurst, 100 A.D.3d at 719, 954 N.Y.S.2d 557 [internal quotation marks omitted]; see Miller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171 ).
Here, the Town of North Hempstead established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the defect that allegedly caused the plaintiff's accident, as required by Town Code § 26–1, and that it did not create the defect through an affirmative act of negligence (see Lichtman v. Village of Kiryas Joel, 90 A.D.3d 1001, 1001–1002, 935 N.Y.S.2d 331 ; Forman v. City of White Plains, 5 A.D.3d 434, 773 N.Y.S.2d 102 ; Davis v. City of New York, 270 App.Div. 1047, 63 N.Y.S.2d 95, affd. 296 N.Y. 896, 72 N.E.2d 619 ). There is no allegation that the Town made special use of the sidewalk where the accident occurred. Contrary to the Supreme Court's determination, in opposition to the motion, the plaintiff failed to raise a triable issue of fact as to whether any act of the Town immediately created the defect that caused the plaintiff's accident (see Yarborough v. City of New York, 10 N.Y.3d 726, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Oboler v. City of New York, 8 N.Y.3d 888, 832 N.Y.S.2d 871, 864 N.E.2d 1270 ; Davison v. City of Buffalo, 96 A.D.3d 1516, 947 N.Y.S.2d 702 ; Lopez v. G & J Rudolph Inc., 20 A.D.3d 511, 799 N.Y.S.2d 254 ).
Accordingly, the Supreme Court erred in denying the Town's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.