Smith v. Brookhaven

22 Citing cases

  1. Carlo v. Babylon

    55 A.D.3d 769 (N.Y. App. Div. 2008)   Cited 12 times

    The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that it did not have prior written notice of the alleged defect. A municipality that has enacted a prior written notice law is excused from liability absent proof of prior written notice or an exception thereto ( see Poirier v City of Schenectady, 85 NY2d 310, 313; Smith v Town of Brookhauen, 45 AD3d 567). The Court of Appeals has recognized two exceptions to this rule, "namely, where the locality created the defect or hazard through an affirmative act of negligence [and] where a special use confers a special benefit upon the locality" ( Amabile v City of Buffalo, 93 NY2d 471, 474; see Delgado v County of Suffolk, 40 AD3d 575). The defendant established its entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the alleged defective condition ( see Poirier v City of Schenectady, 85 NY2d 310; Smith v Town of Brookhaven, 45 AD3d 567).

  2. Rodriguez v. Mount Vernon

    51 A.D.3d 900 (N.Y. App. Div. 2008)   Cited 6 times

    Ordered that the order is reversed, on the law, with costs, and the motion of the defendant City of Mount Vernon for summary judgment dismissing the complaint insofar as asserted against it is granted. A municipality that has enacted a prior written notice law is excused from liability absent proof of prior written notice or an exception thereto ( see Poirier v City of Schenectady, 85 NY2d 310, 313; Smith v Town of Brookhaven, 45 AD3d 567). The Court of Appeals has recognized two exceptions to this rule, "namely, where the locality created the defect or hazard through an affirmative act of negligence . . . and where a `special use' confers a special benefit upon the locality" ( Amabile v City of Buffalo, 93 NY2d 471, 474; see Delgado v County of Suffolk, 40 AD3d 575, 575-576). Here, the defendant City of Mount Vernon established its entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the allegedly dangerous condition that purportedly caused the plaintiffs fall ( see Smith v Town of Brookhaven, 45 AD3d at 568; Jacobs v Village of Rockville Ctr., 41 AD3d 539, 540).

  3. Nickerson v. City of N.Y.

    2016 N.Y. Slip Op. 30864 (N.Y. Sup. Ct. 2016)

    The motion by the City is also granted as unopposed, and otherwise on the merits (see Estrada v City of New York, 273 AD2d 194 [2000]). A municipality that has enacted a prior written notice law is excused from liability absent proof of prior written notice or an exception thereto (see Poirier v City of Schenectady, 85 NY2d 310, 313 [1995]; Smith v Town of Brookhaven, 45 AD3d 567 [2007]). Pursuant to Administrative Code of the City of New York § 7-201 (c) (2), a plaintiff must plead and prove that the City had prior written notice of a street defect before it can be held liable for its alleged negligence in failing to maintain its streets in a reasonably safe condition (see, Woodson v City of New York, 93 NY2d 936; Katz v City of New York, 87 NY2d 241; David v City of New York, 267 AD2d 419; Solone v City of New York, 238 AD2d 332).

  4. DeBorba v. City of Rye

    185 A.D.3d 898 (N.Y. App. Div. 2020)   Cited 4 times

    Contrary to the plaintiffs' contention, the expert's affidavit was speculative and conclusory, and was insufficient to raise a triable issue of fact as to whether the Sellon defendants created the allegedly dangerous condition on the sidewalk (seeGilbert v. City of Rye, 175 A.D.3d at 472–473, 106 N.Y.S.3d 134 ; Bousquet v. Water View Realty Corp., 161 A.D.3d 718, 719–720, 76 N.Y.S.3d 205 ; Dalder v. Incorporated Vil. of Rockville Ctr., 116 A.D.3d 908, 910, 983 N.Y.S.2d 835 ). "At best, the expert's affidavit showed that [the alleged dangerous condition] formed over a course of years as a result of wear and tear and environmental factors, which cannot be deemed an affirmative act of negligence" ( Smith v. Town of Brookhaven, 45 A.D.3d 567, 568, 846 N.Y.S.2d 203 ; seeBeiner v. Village of Scarsdale, 149 A.D.3d 679, 681, 51 N.Y.S.3d 578 ; Ferreira v. County of Orange, 34 A.D.3d 724, 725, 825 N.Y.S.2d 122 ; Hyland v. City of New York, 32 A.D.3d 822, 824, 821 N.Y.S.2d 138 ). Accordingly, we agree with the Supreme Court's determination to grant that branch of the Sellon defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against them.

  5. Estate of Peretz v. Vill. of Great Neck Plaza

    130 A.D.3d 867 (N.Y. App. Div. 2015)   Cited 8 times

    y a defect in a public sidewalk only when the owner either created the condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by a breach of that duty” (Petrillo v. Town of Hempstead, 85 A.D.3d 996, 997, 925 N.Y.S.2d 660 ; see Maya v. Town of Hempstead, 127 A.D.3d 1146, 8 N.Y.S.3d 372 ; Morelli v. Starbucks Corp., 107 A.D.3d 963, 964, 968 N.Y.S.2d 542 ). Insofar as is relevant here, Danad established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not create the alleged defective condition in the sidewalk (see Maya v. Town of Hempstead, 127 A.D.3d 1146, 8 N.Y.S.3d 372 ; Dalder v. Incorporated Vil. of Rockville Ctr., 116 A.D.3d 908, 909, 983 N.Y.S.2d 835 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Perez v. City of New York, 116 A.D.3d 1019, 984 N.Y.S.2d 412 ; Smith v. Town of Brookhaven, 45 A.D.3d 567, 568, 846 N.Y.S.2d 203 ; Hyland v. City of New York, 32 A.D.3d 822, 823–824, 821 N.Y.S.2d 138 ), and the ASV defendants did not oppose the motion.Accordingly, the Supreme Court should have granted the appellants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them and all cross claims insofar as asserted against each of them by the ASV defendants.

  6. Hirasawa v. City of Long Beach

    57 A.D.3d 846 (N.Y. App. Div. 2008)   Cited 10 times

    69, 770; see Poirier v City of Schenectady, 85 NY2d 310, 314; Rodriguez v City of Mount Vernon, 51 AD3d 900). The Court of Appeals has recognized two exceptions to this rule, "namely, where the locality created the defect or hazard through an affirmative act of negligence" and "where a `special use' confers a special benefit upon the locality" ( Amabile v City of Buffalo, 93 NY2d 471, 474; see also Delgado v County of Suffolk, 40 AD3d 575; Lopez v GJ Rudolph Inc., 20 AD3d 511, 512). "Further, `the affirmative negligence exception . . . [is] limited to work by the City that immediately results in the existence of a dangerous condition'" ( Oboler v City of New York, 8 NY3d 888, 889-890 [emphasis added], quoting Bielecki v City of New York, 14 AD3d 301). Applying these principles here, the City established its entitlement to judgment as a matter of law by submitting evidence that it had no prior written notice of the allegedly defective condition which caused the plaintiff's fall ( see Smith v Town of Brookhaven, 45 AD3d 567, 568; Filaski-Fitzgerald v Town of Huntington, 18 AD3d 603, 604; Gold v County of Westchester, 15 AD3d 439, 440). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact as to her contention that the City created the alleged defect through an affirmative act of negligence. Although the City had supervised ADJO's work, the plaintiff failed to submit evidence that the defective condition existed immediately upon the completion of the repair work ( see Daniels v City of New York, 29 AD3d 514; Bielecki v City of New York, 14 AD3d at 301).

  7. Rosado v. Jose Bou

    55 A.D.3d 710 (N.Y. App. Div. 2008)   Cited 9 times

    The Supreme Court granted the Town's cross motion, but denied the appellants' motion. The Supreme Court properly determined that the Town established, prima facie, that it had not received prior written notice of an allegedly dangerous condition as required by section 84-1 of the Town Code, and neither Joe Del's Auto Body nor Patanjo raised a triable issue of fact in opposition ( see Smith v Town of Brookhaven, 45 AD3d 567, 567-568; Griesbeckv County of Suffolk, 44 AD3d 618, 619). Accordingly, the Supreme Court properly granted that branch of the Town's cross motion which was for summary judgment dismissing the appellants' cross claim for contribution and common-law indemnification insofar as asserted it.

  8. Marshall v. New York

    52 A.D.3d 586 (N.Y. App. Div. 2008)   Cited 48 times
    In Marshall, the Second Department found that records reflecting that pothole repairs had been made over one year before the accident did not establish prior written notice.

    The City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the alleged pothole as required by Administrative Code of the City of New York § 7-201 (c) ( see Yarborough v City of New York, 10 NY3d at 728; Smith v Town of Brookhaven, 45 AD3d 567; Sommer v Town of Hempstead, 271 AD2d 434). Contrary to the plaintiffs contention, repair orders or reports, reflecting only that pothole repairs had been made to the subject area more than a year before the accident, were insufficient to constitute prior written notice of the defect that allegedly caused the plaintiffs injuries ( see Khemraj v City of New York, 37 AD3d 419, 420; Gee v City of New York, 304 AD2d 615, 617). Once the City made a prima facie showing that it did not have prior written notice of the defect, the burden shifted to the plaintiff to demonstrate the applicability of either of the two exceptions to the written notice requirement ( see Yarborough v City of New York, 10 NY3d at 728). The plaintiff failed to submit sufficient evidence to raise a triable issue of fact ( see Zuckerman v City of New York, 49 NY2d 557, 562). Specifically, the plaintiff failed to raise an issue as to whether the pothole was the result of work done by the City that "immediately result[ed

  9. Trinidad v. Mount Vernon

    51 A.D.3d 661 (N.Y. App. Div. 2008)   Cited 15 times

    "[T]he affirmative negligence exception . . . [is] limited to work by the City that immediately results in the existence of a dangerous condition" ( Bielecki v City of New York, 14 AD3d 301, 301; see Oboler v City of New York, 8 NY3d 888, 889; Daniels v City of New York, 29 AD3d 514, 515). Here, the defendant City of Mount Vernon established its entitlement to judgment as a matter of law by submitting evidence establishing that it had no prior written notice of the defective condition in the sidewalk which allegedly caused the injured plaintiffs fall ( see Smith v Town of Brookhaven, 45 AD3d 567; Filaski-Fitzgerald v Town of Huntington, 18 AD3d 603, 604; Gold v County of Westchester, 15 AD3d 439, 440). In opposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact as to whether the City created the alleged defect through an affirmative act of negligence. While there was some evidence that the City performed water service work at or near the accident site more than seven years before the accident, there was legally insufficient proof that the defective condition existed immediately upon the City's completion of the repair work, or that the deterioration of the sidewalk was caused by the City's repair, instead of developing over a period of time ( see Daniels v City of New York, 29 AD3d at 515; Bielecki v City of New York, 14 AD3d at 301).

  10. Farrell v. New York

    49 A.D.3d 806 (N.Y. App. Div. 2008)   Cited 33 times

    Accordingly, the City established its prima facie entitlement to judgment as a matter of law ( see Koehler v Incorporated Vil. of Lindenhurst, 42 AD3d 438; Ferreira v County of Orange, 34 AD3d at 725). In opposition, neither the plaintiff nor the other defendants (hereinafter collectively the appellants) raised a triable issue of fact as to whether the allegedly dangerous or obstructed condition was created by any affirmative acts of negligence by the City ( see Smith v Town of Brookhaven, 45 AD3d 567; Ferreirav County of Orange, 34 AD3d at 725). The mere failure to maintain or repair a roadway constitutes an act of omission rather than an affirmative act of negligence (see Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917, 919; Silva v City of New York, 17 AD3d 566, 568; Alfano v City of New Rochelle, 259 AD2d 645).