Weinstein v. Cnty. of Nassau

180 A.D.3d 730

115 N.Y.S.3d 698 (Mem)

Brian WEINSTEIN, Appellant,

v.COUNTY OF NASSAU, Defendant, Town of Hempstead, et al., Respondents.

2017-04023

Index No. 603672/13

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

Argued - September 24, 2019

February 5, 2020

Sullivan Papain Block McGrath & Cannavo P.C., New York, NY (Brian J. Shoot of counsel), for appellant.

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Randy S. Nissan of counsel), for respondent Town of Hempstead.

Robert M. Agostisi, Corporation Counsel, Long Beach, NY (Charles M. Geiger of counsel), for respondent City of Long Beach.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), dated March 2, 2017. The order granted the separate motions of the defendants Town of Hempstead and City of Long Beach for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant Town of Hempstead for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with one bill of costs to the plaintiff payable by the defendant Town of Hempstead, and one bill of costs to the defendant City of Long Beach payable by the plaintiff.

The plaintiff allegedly was injured when he tripped and fell after stepping into a hole. The hole was at a location where the concrete surface of a roadway maintained by the defendant City of Long Beach met the asphalt surface of a roadway maintained by the defendant Town of Hempstead. The plaintiff subsequently commenced this action against the Town and the City (hereinafter together the defendants), and another defendant.

The defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, arguing, inter alia, that they did not have prior written notice of the alleged condition and that no recognized exception to the prior written notice requirement applied (see Town of Hempstead Code § 6–1; Charter of City of Long Beach § 256A[a] ). The Supreme Court granted the defendants' respective motions, and the plaintiff appeals.

Generally, where, as here, a municipality 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 written notice of the defect" ( Cimino v. County of Nassau, 105 A.D.3d 883, 884, 963 N.Y.S.2d 698 ). "However, the courts have recognized an exception to the prior written notice requirement in circumstances where ‘the municipality affirmatively created the defect through an act of negligence’ " ( Gutierrez–Contreras v. Village of Port Chester, 172 A.D.3d 1333, 1334, 101 N.Y.S.3d 149, quoting Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ). "This exception is limited to work performed by the municipality that immediately resulted in the existence of a dangerous condition" ( Gutierrez–Contreras v. Village of Port Chester, 172 A.D.3d at 1334, 101 N.Y.S.3d 149 ; see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Liverpool v. City of New York, 163 A.D.3d 790, 791, 83 N.Y.S.3d 64 ).

Here, the City established its prima facie entitlement to judgment as a matter of law by submitting evidence that it did not receive prior written notice of the condition upon which the plaintiff allegedly tripped and fell, and that it did not create the condition through an affirmative act of negligence (see Garcia v. Thomas, 173 A.D.3d 842, 842–843, 102 N.Y.S.3d 707 ; Gutierrez–Contreras v. Village of Port Chester, 172 A.D.3d at 1334–1135, 101 N.Y.S.3d 149 ; Beiner v. Village of Scarsdale, 149 A.D.3d 679, 680, 51 N.Y.S.3d 578 ; Wolin v. Town of N. Hempstead, 129 A.D.3d 833, 834–835, 11 N.Y.S.3d 627 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City received prior written notice of the alleged condition, or whether it created the alleged condition through an affirmative act of negligence which immediately resulted in the existence of the defect (see Taustine v. Incorporated Vil. of Lindenhurst, 158 A.D.3d 785, 786, 71 N.Y.S.3d 547 ; Beiner v. Village of Scarsdale, 149 A.D.3d 679, 680–681, 51 N.Y.S.3d 578 ; Pipitone v. Mineola Realty Assoc., 134 A.D.3d 918, 918–919, 22 N.Y.S.3d 125 ). The plaintiff's allegation that the City was negligent in failing to provide adequate lighting in the subject area, which was improperly raised for the first time in his bill of particulars nearly...