Prucha v. Town of Babylon

138 A.D.3d 1083

30 N.Y.S.3d 671

2016 N.Y. Slip Op. 03152

Elise PRUCHA, respondent,

v.TOWN OF BABYLON, appellant.

2015-07238, Index No. 41176/10.

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

April 27, 2016.

Lewis Johs Avallone & Aviles, LLP, Islandia, NY (Robert A. Lifson of counsel), for appellant.

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn and Naomi M. Taub ], of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated January 8, 2015, which denied its motion for summary judgment dismissing the complaint and granted the plaintiff's cross motion for leave to amend the notice of claim and the pleadings to assert that the defendant had prior written notice of the sidewalk condition which caused her injury.

ORDERED that the order is affirmed, with costs.

On December 12, 2009, the plaintiff allegedly sustained personal injuries when she tripped and fell in front of her residence in the defendant, Town of Babylon, on a section of sidewalk that had been raised by the roots of a curbside tree. It is undisputed that at the time of the plaintiff's accident, Code of the Town of Babylon § 158–4 provided that no civil action could be maintained against the Town for injuries arising from a sidewalk defect unless prior written notice of the defect had been given either to the Town Clerk or to the Commissioner of the Department of Public Works, and the condition was not adequately addressed within a reasonable time thereafter. The plaintiff alleged that, prior to her accident, she made numerous telephonic complaints to the Town regarding the condition of the curbside tree and the raised sidewalk. The Town has conceded that, in response to these complaints, an employee of the Department of Public Works (hereinafter the DPW) inspected the condition and prepared a written “Foreman's Inspection Report,” which indicated that the tree would be removed and the sidewalk would be replaced. A copy of the report was left in the plaintiff's mailbox. According to the deposition testimony of a supervisor from the DPW, the original of the written report was handed in to the DPW, was entered into the Town's computerized records, and resulted in the issuance of work orders for the removal of the tree and the replacement of the sidewalk. The tree was removed approximately one week after the inspection was performed, and the sidewalk was removed approximately two months later. However, before the sidewalk was removed, the plaintiff allegedly tripped over it.

The plaintiff subsequently commenced this action against the Town, but failed to allege in the notice of claim and the pleadings that the Town had received prior written notice of the alleged sidewalk defect. The Town moved for summary judgment dismissing the complaint, inter alia, on the ground that the plaintiff had failed to plead and prove compliance with the Town's prior written notice code provision, relying upon affidavits from an employee of the Town Clerk's Office and the Commissioner of the DPW reciting that no prior written notice of the alleged condition had been received. The plaintiff cross-moved for leave to amend the notice of claim and the pleadings to allege the Town's receipt of prior written notice. The Supreme Court denied the Town's motion and granted the plaintiff's cross motion. We affirm.

“A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice...