Opinion
2021–05003 Index No. 619956/17
12-07-2022
Lisa TIMMONS, respondent, v. TOWN OF BABYLON, appellant, et al., defendants.
Joseph Wilson, Town Attorney, Lindenhurst, NY (Elizabeth A. Sclafani and Donna M. Somma of counsel), for appellant. Zlotolow & Associates, P.C., Melville, NY (Jason S. Firestein of counsel), for respondent.
Joseph Wilson, Town Attorney, Lindenhurst, NY (Elizabeth A. Sclafani and Donna M. Somma of counsel), for appellant.
Zlotolow & Associates, P.C., Melville, NY (Jason S. Firestein of counsel), for respondent.
MARK C. DILLON, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, LARA J. GENOVESI, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the defendant Town of Babylon appeals from an order of the Supreme Court, Suffolk County (Kathy G. Bergmann, J.), dated June 21, 2021. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
In September 2016, the plaintiff allegedly sustained injuries when she tripped and fell on an area of blacktop situated between a sidewalk and a roadway in the defendant Town of Babylon. As a result of the accident, the plaintiff commenced the instant action against the Town, among others, to recover damages for personal injuries. After the completion of discovery, the Town moved for summary judgment dismissing the complaint insofar as asserted against it. The Supreme Court denied the motion, and the Town appeals.
"A municipality that has enacted a prior written notification law may avoid liability for a defect or hazardous condition that falls within the scope of the law if it can establish that it has not been notified in writing of the existence of the defect or hazard at a specific location" ( Torres v. Incorporated Vil. of Rockville Ctr., 195 A.D.3d 974, 975, 146 N.Y.S.3d 519 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ). "Such [prior written] notice is obviated where the plaintiff demonstrates that the municipality ‘created the defect or hazard through an affirmative act of negligence’ or that a ‘special use’ conferred a benefit on the municipality" ( Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 127–128, 927 N.Y.S.2d 304, 950 N.E.2d 908, quoting Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ).
Here, it is undisputed that the Town did not receive prior written notice of the alleged defective condition. Therefore, the Town "met its burden of establishing that it did not receive prior written notice of the [defective] condition, thereby shifting the burden of demonstrating either that a question of fact existed in that regard or that one of the Amabile exceptions applied" ( Groninger v. Village of Mamaroneck, 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Smith v. City of New York, 210 A.D.3d 53, 175 N.Y.S.3d 529 ). In opposition, the plaintiff raised a triable issue of fact as to whether the Town affirmatively created the alleged defective condition (see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Boorman v. Town of Tuxedo, 204 A.D.3d 742, 743, 164 N.Y.S.3d 501 ; Perrington v. City of Mount Vernon, 37 A.D.3d 571, 572, 829 N.Y.S.2d 667 ).
Contrary to the Town's contention, it was not entitled to summary judgment dismissing the complaint insofar as asserted against it on the ground that the alleged defective condition was open and obvious and, as a matter of law, not inherently dangerous. The Town failed to demonstrate, prima facie, that the alleged defective condition was both open and obvious and not inherently dangerous as a matter of law (see Everett v. CMI Servs. Corp., 206 A.D.3d 620, 622, 170 N.Y.S.3d 132 ; see also Baran v. Port Auth. of New York & New Jersey, 196 A.D.3d 674, 676, 148 N.Y.S.3d 685 ; Vigil v. City of New York, 110 A.D.3d 986, 987, 973 N.Y.S.2d 750 ). Accordingly, the Supreme Court properly denied the Town's motion for summary judgment dismissing the complaint insofar as asserted against it on this ground regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
The plaintiff's remaining contentions, raised for the first time on appeal, are not properly before this Court (see Bank of Am., N.A. v. Lino, 203 A.D.3d 1004, 1005, 162 N.Y.S.3d 751 ; Kachele v. Nouveau El. Indus., Inc., 186 A.D.3d 1626, 1627, 129 N.Y.S.3d 833 ).
DILLON, J.P., MALTESE, WOOTEN and GENOVESI, JJ., concur.