Opinion
2013-06-26
Florence SALIERNO, respondent, v. CITY OF MOUNT VERNON, et al., appellants.
Nichelle A. Johnson, Corporation Counsel, Mount Vernon, N.Y. (Hina Sherwani of counsel), for appellants. Calano & Culhane, LLP, White Plains, N.Y. (Thomas A. Culhane of counsel), for respondent.
Nichelle A. Johnson, Corporation Counsel, Mount Vernon, N.Y. (Hina Sherwani of counsel), for appellants. Calano & Culhane, LLP, White Plains, N.Y. (Thomas A. Culhane of counsel), for respondent.
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Westchester County (Walker, J.), entered September 17, 2012, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it 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, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Carlucci v. Village of Scarsdale, 104 A.D.3d 797, 961 N.Y.S.2d 318;Miller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171). “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” ( Miller v. Village of E. Hampton, 98 A.D.3d at 1008, 951 N.Y.S.2d 171;see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Braver v. Village of Cedarhurst, 94 A.D.3d 933, 934, 942 N.Y.S.2d 178). If one of these recognized exceptions applies, the written notice requirement is obviated ( see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 127, 927 N.Y.S.2d 304, 950 N.E.2d 908).
The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the defendant City of Mount Vernon did not have prior written notice of, or create, the defectiveor dangerous condition that allegedly caused the plaintiff's accident ( see Romano v. Vil. of Mamaroneck, 100 A.D.3d 854, 954 N.Y.S.2d 593;Cuebas v. City of Yonkers, 97 A.D.3d 779, 780, 948 N.Y.S.2d 688). In opposition, the plaintiff raised a triable issue of fact with respect to whether the City of Mount Vernon affirmatively created the dangerous condition that caused her accident ( see Laracuente v. City of New York, 104 A.D.3d 822, 961 N.Y.S.2d 527;Anderson v. CD Fleetwood Assocs., LLC, 82 A.D.3d 689, 689, 917 N.Y.S.2d 895;Danis v. Incorporated Vil. of Atl. Beach, 74 A.D.3d 1273, 1274, 903 N.Y.S.2d 251). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint.
The defendants' remaining contention, that the defect was trivial and therefore not actionable, is raised for the first time on appeal, and thus, is not properly before this Court.