Corey A. Auerbach, Albany, for the Association of Towns of the State of New York, amicus curiae. The decision of the Appellate Division, Second Department is contrary to longstanding rules of statutory construction and leaves municipalities unable to ascertain when their internal practices will vitiate their prior written notice laws. ( Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362; Amabile v City of Buffalo, 93 NY2d 471; Poirier v City of Schenectady, 85 NY2d 310; MacMullen v City of Middletown, 187 NY 37; Conlon v Village of Pleasantville, 146 AD2d 736; Rodriguez v City of Mount Vernon, 51 AD3d 900; Schutz-Prepscius v Incorporated Vil. of Port Jefferson, 51 AD3d 657.) OPINION OF THE COURT
Contrary to plaintiffs' contention, their submissions do not establish that plaintiff was directed by an employee of defendant to make his complaint about potholes to the wrong person or office (cf. Schutz-Prepscius v Incorporated Vil. of Port Jefferson, 51 AD3d 657, 658 [2d Dept 2008]; see also Gorman v Town of Huntington, 47 AD3d 30, 38 [2d Dept 2007], revd 12 NY3d 275 [2009]), and the record does not support the conclusory allegation of plaintiffs that defendant's 311 call center was "advertised" as the means to report dangerous conditions to defendant (see Groninger, 17 NY3d at 129-130; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Entered: April 30, 2021
of Huntington , 12 NY3d 275, 280). Although written notice would not be required if the defendants created the condition by an affirmative act of negligence ( id. at 279; seeKiszenik v Town of Huntington , 70 AD3d 1007, 1008), the evidence submitted by the plaintiffs in opposition to the defendants' cross motion for summary judgment failed to raise a triable issue of fact as to whether the defendants' repair work immediately resulted in a pothole or other hazardous condition at the site of the injured plaintiff's accident (see Oboler v City of New York , 8 NY3d 888, 889-890; Forbes v City of NewYork , 85 AD3d 1106, 1106; Richards v Incorporated Vil. of Rockville Ctr. , 80 AD3d 594, 594-595; cf. Padula v City of Long Beach , 20 AD3d 555, 556). Contrary to the plaintiffs' contention, certain correspondence between the County Executive and the injured plaintiff did not estop the defendants from relying on the written notice requirement ( see Gorman v Town of Huntington, 12 NY3d at 280; Schutz-Prepscius v Incorporated Vil.of Port Jefferson , 51 AD3d 657, 658). Accordingly, the Supreme Court properly granted the defendants' cross motion for summary judgment dismissing the complaint and denied the plaintiffs' motion for summary judgment on the issue of prior written notice.
d 292; see Kiszenik v. Town of Huntington, 70 A.D.3d 1007, 1008, 895 N.Y.S.2d 208), the evidence submitted by the plaintiffs in opposition to the defendants' cross motion for summary judgment failed to raise a triable issue of fact as to whether the defendants' repair work immediately resulted in a pothole or other hazardous condition at the site of the injured plaintiff's accident ( see Oboler v. City of New York, 8 N.Y.3d 888, 889–890, 832 N.Y.S.2d 871, 864 N.E.2d 1270; Forbes v. City of New York, 85 A.D.3d 1106, 1106, 926 N.Y.S.2d 309; Richards v. Incorporated Vil. of Rockville Ctr., 80 A.D.3d 594, 594–595, 914 N.Y.S.2d 643; cf. Padula v. City of Long Beach, 20 A.D.3d 555, 556, 799 N.Y.S.2d 557). Contrary to the plaintiffs' contention, certain correspondence between the County Executive and the injured plaintiff did not estop the defendants from relying on the written notice requirement ( see Gorman v. Town of Huntington, 12 N.Y.3d at 280, 879 N.Y.S.2d 379, 907 N.E.2d 292; Schutz–Prepscius v. Incorporated Vil. of Port Jefferson, 51 A.D.3d 657, 658, 858 N.Y.S.2d 235). Accordingly, the Supreme Court properly granted the defendants' cross motion for summary judgment dismissing the complaint and denied the plaintiffs' motion for summary judgment on the issue of prior written notice.
In support of its motion for summary judgment, the Village relied upon the deposition testimony of its Deputy Superintendent of Public Works. However, the Deputy Superintendent did not unequivocally testify that the Village had no prior written notice of the subject icy condition, and he did not testify that he had conducted any search to determine whether such notice had indeed been received by the proper statutory designee ( cf. Schutz-Prepscius v Incorporated Vil. of Port Jefferson, 51 AD3d 657). Under these circumstances, the Deputy Superintendent's testimony was insufficient to satisfy the Village's prima facie burden of showing that it had no prior written notice of the subject icy condition ( see Sanatass v Town of N. Hempstead, 64 AD3d 695; Bonilla v Incorporated Vil. of Hempstead, 49 AD3d 788, 789; Kramer v Town of Hempstead, 284 AD2d 503, 504; LaRosa v Town of Hempstead, 237 AD2d 579, 580). Accordingly, the Village's motion for summary judgment should have been denied.
The cases relied on by plaintiff are likewise distinguishable as in Ortiz v Town of Islip, the Town submitted an affidavit of an administrative aid for the Department of Public Works and the deposition transcript of a Town representative, both of whom failed to state that the records of the Town Clerk were searched (175 A.D.3d 699, 700 [2d Dept 2019]). Schtz-Prepscius v Incorporated Vil. of Port Jefferson involves the limited circumstances under which a municipality may be estopped from utilizing the defense that written notice of a defective condition was not sent to the statutory designee, which is not being argued in the instant motions (51 A.D.3d 657, 658 [2d Dept 2008]). Plaintiffs further argument, unsupported by any case law, that the e-mails of the Superintendent of Public Works are within the custody of the Village Cierk, while creative, is flawed. In addition, actual notice of the alleged hazardous condition does not override the statutory requirement of prior written notice of a sidewalk defect (Velho v Village of Sleepy Hollow, 119 A.D.3d 551, 552 [2d Dept 2014]).
Whether estoppel applies in a particular case is ordinarily—as it is here—a question of fact for trial. (Agress v. Clarkstown Cent. School Dist., 69 AD3d 769 (2d Dep't 2010) ; Schutz–Prepscius v. Incorporated Village of Port Jefferson, 51 AD3d 657 (2d Dep't 2008) ; Renda v. Frazer, 100 Misc.2d 511, (Sup 1979), order aff'd, 75 A.D.2d 490, (4th Dep't 1980). Third party plaintiff's fourth cause of action—concerning the procurement clause—is denied.