Discepolo v. Cty. of Nassau

208 N.Y.S.3d 303

Barbara DISCEPOLO, et al., appellants,

v.COUNTY OF NASSAU, defendants, et al.,Town of Hempstead, respondent.

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 28, 2023

April 3, 2024

Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, NY [Scott T. Horn, Nicholas S. Bruno, and Ross Friscia], of counsel), for appellants.

Jaspan Schlesinger Narendran LLP, Garden City, NY (Christopher E. Vatter and Scott B. Fisher of counsel), for respondent.

ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, LILLIAN WAN, CARL J. LANDICINO, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered May 9, 2022. The order, insofar as appealed from, upon, in effect, converting that branch of the defendant Town of Hempstead’s motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it into one for summary judgment dismissing the complaint insofar as asserted against it, granted that branch of the motion.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On October 9, 2020, the plaintiff Barbara Discepolo (hereinafter the injured plaintiff) allegedly was injured when she fell on a sidewalk in Nassau County due to a defective condition on the sidewalk. The injured plaintiff, and her husband suing derivatively, commenced this action against the defendant Town of Hempstead, among others, inter alia, to recover damages for personal injuries. The defendant Town of Hempstead moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it, or in the alternative, pursuant to CPLR 3211(c) for summary judgment dismissing the complaint insofar as asserted against it. By order entered May 9, 2022, the Supreme Court, among other things, upon, in effect, converting that branch of the Town’s motion which was pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against it into one for summary judgment dismissing the complaint insofar as asserted against it, granted that branch of the motion. The plaintiffs appeal.

[1–4] " ‘Where … a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies’ " (Vaisman v. Village of Croton–on–Hudson, 209 A.D.3d 920, 921, 177 N.Y.S.3d 73, quoting Polka v. Village of Ossining, 120 A.D.3d 641, 641, 992 N.Y.S.2d 273). " ‘The purpose of a prior written notice provision is to place a municipality on notice that there is a defective condition on publicly-owned property which, if left unattended, could result in injury. This ensures that a municipality, which is not expected to be cognizant of every crack or defect within its borders, will not be held responsible for injury from such defect unless given an opportunity to repair it’ " (Vaisman v. Village of Croton– on–Hudson, 209 A.D.3d at 921, 177 N.Y.S.3d 73, quoting Gorman v. Town of Huntington, 12 N.Y.3d 275, 279, 879 N.Y.S.2d 379, 907 N.E.2d 292). " ‘To establish prima facie entitlement to judgment as a matter of law, the defendant municipality must show, prima facie, the lack of prior written notice; once the defendant establishes that it lacks prior written notice, the burden then shifts to the plaintiff to demonstrate either that a question of fact exists in that regard or that one of the exceptions applies’ " (Morejon v. New York City Tr. Auth., 216 A.D.3d 134, 137, 191...