Opinion
02-01-2017
Alfred M. WALKER, appellant, v. COUNTY OF NASSAU, respondent.
Elovich & Adell, Long Beach, NY (A. Trudy Adell, Darryn Solotoff, and Mitchel Sommer of counsel), for appellant. Carnell T. Foskey, County Attorney, Mineola, NY (Andrew R. Scott of counsel), for respondent.
Elovich & Adell, Long Beach, NY (A. Trudy Adell, Darryn Solotoff, and Mitchel Sommer of counsel), for appellant.
Carnell T. Foskey, County Attorney, Mineola, NY (Andrew R. Scott of counsel), for respondent.
RANDALL T. ENG, P.J., LEONARD B. AUSTIN, SHERI S. ROMAN and JEFFREY A. COHEN, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated February 2, 2016, which granted the defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On the evening of January 28, 2012, the plaintiff allegedly slipped and fell on ice in front of the Theodore Roosevelt Executive and Legislative Building in Mineola. The accident occurred on the landing between two sets of exterior steps leading to the building entrance. The plaintiff subsequently commenced this action against the County of Nassau. Following discovery, the County moved for summary judgment dismissing the complaint on the ground that it had not received prior written notice of the alleged icy condition at the accident location as required by Nassau County Administrative Code § 12–4.0(e). In opposition to the motion, the plaintiff argued that the County could not require prior written notice of the icy condition on the landing of an exterior stairway because it was not a location enumerated in General Municipal Law § 50–e(4). The Supreme Court granted the County's motion, and we affirm.
Where a local government 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 prior 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, 473–474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Abreu–Lopez v. Incorporated Vil. of Freeport, 142 A.D.3d 515, 36 N.Y.S.3d 492 ; Kelley v. Incorporated Vil. of Hempstead, 138 A.D.3d 931, 933, 30 N.Y.S.3d 277 ; Williams v. Town of Smithtown, 135 A.D.3d 854, 24 N.Y.S.3d 150 ). Here, the County established its prima facie entitlement to judgment as a matter of law by submitting the affidavit of a County employee, which indicated that she had conducted a search of the relevant records covering a five-year period prior to the date of the accident, and found no written notice of any dangerous or defective conditions at the accident site (see Bachvarov v. Lawrence Union Free Sch. Dist., 131 A.D.3d 1182, 1185, 17 N.Y.S.3d 168 ; Wolin v. Town of North Hempstead, 129 A.D.3d 833, 843–835, 11 N.Y.S.3d 627 ; Fischer v. Village of New Sq., 127 A.D.3d 807, 808, 9 N.Y.S.3d 63 ).In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the County could require prior written notice of the icy condition because the landing on the exterior steps of the building where the accident occurred provided the public with a general right of passage, and thus served the same functional purpose as a sidewalk, which is one of the locations specifically enumerated in General Municipal Law § 50–e(4) (see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; Woodson v. City of New York, 93 N.Y.2d 936, 937–938, 693 N.Y.S.2d 69, 715 N.E.2d 96 ; Loiaconi v. Village of Tarrytown, 36 A.D.3d 864, 865, 829 N.Y.S.2d 191 ; Mullen v. Town of Hempstead, 66 A.D.3d 745, 746, 886 N.Y.S.2d 355 ; Youngblood v. Village of Cazenovia, 118 Misc.2d 1020, 1022, 462 N.Y.S.2d 526, affd. 93 A.D.2d 962, 463 N.Y.S.2d 738 ; cf. Walker v. Town of Hempstead, 84 N.Y.2d 360, 366, 618 N.Y.S.2d 758, 643 N.E.2d 77 ).
Accordingly, the Supreme Court properly granted the County's motion for summary judgment dismissing the complaint.