Wolin v. Town of N. Hempstead

129 A.D.3d 833

11 N.Y.S.3d 627

2015 N.Y. Slip Op. 04846

Irma WOLIN, appellant

v.TOWN OF NORTH HEMPSTEAD, respondent, et al., defendants.

2013-03528

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

June 10, 2015.

Lipsig, Shapey, Manus & Moverman, P.C. (Chirico Law PLLC, Brooklyn, N.Y. [Vincent Chirico ], of counsel), for appellant.

Elizabeth D. Botwin, Town Attorney, Manhasset, N.Y. (Linda B. Zuech of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, SANDRA L. SGROI, and COLLEEN D. DUFFY, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Asarch, J.), dated January 24, 2013, as granted that branch of the cross motion of the defendant Town of North Hempstead which was for summary judgment dismissing the complaint insofar as asserted against it.

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

On June 19, 2010, the plaintiff allegedly sustained injuries when she tripped and fell on a sidewalk raised by tree roots located on Wooleys Lane in the Town of North Hempstead. The plaintiff commenced an action against, among others, the Town, to recover damages for personal injuries. The Town cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. In an order dated January 24, 2013, the Supreme Court, inter alia, granted the Town's motion.

“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 requirement applies” (Monaco v. Hodosky, 127 A.D.3d 705, 705, 7 N.Y.S.3d 197 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Barnes v. Incorporated Vil. of Port Jefferson, 120 A.D.3d 528, 529, 990 N.Y.S.2d 841 ; Simon v. Incorporated Vil. of Lynbrook, 116 A.D.3d 692, 692, 983 N.Y.S.2d 308 ). “ ‘The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property’ ” (Gonzalez v. Town of Hempstead, 124 A.D.3d 719, 720, 2 N.Y.S.3d 527, quoting Forbes v. City of New York, 85 A.D.3d 1106, 1107, 926 N.Y.S.2d 309 ). The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270 ; Methal v. City of New York, 116 A.D.3d 743, 743–744, 984 N.Y.S.2d 71 ; Forbes v. City of New York, 85 A.D.3d at 1107, 926 N.Y.S.2d 309 ). Here, the Town has adopted a prior written notice law stating that written notices must be “manually subscribed by the complainant” and submitted to the Town Superintendent of Highways or the Town Clerk (Code of the Town of North Hempstead § 26–1).

The Town established its prima facie entitlement to judgment as a matter of law by submitting the affidavits of the statutory designees, the Superintendent of Highways (hereinafter the Superintendent) and the Town Clerk, both of whom averred that a search of the appropriate records had been done and there was no prior written notice of the alleged defective condition that caused the plaintiff's accident (see Gonzalez v. Town of Hempstead, 124 A.D.3d at 720–721, 2 N.Y.S.3d 527 ; Johnson v. Braun, 120 A.D.3d 765, 766, 991 N.Y.S.2d 351 ; Velho v. Village of Sleepy Hollow, 119 A.D.3d 551, 552, 987 N.Y.S.2d 879 ). The Superintendent also averred that the Town Highway Department did not undertake any construction, repair, or alteration of the subject sidewalk. The Town also submitted, inter alia, the affidavit of the Town's Deputy Commissioner of Public Works, in which she stated that the Town's sidewalk district did not undertake any construction, repair, or alteration of the subject sidewalk.

In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Town was provided with prior written notice or whether an exception to that requirement applied (see Methal v. City of New York, 116 A.D.3d at 744, 984 N.Y.S.2d 71 ; Wald v. City of New York, 115 A.D.3d 939, 941, 982 N.Y.S.2d 534 ; Oliveri v. Village of Greenport, 93 A.D.3d 773, 774, 940 N.Y.S.2d 675 ).

Contrary to the plaintiff's contention, the various writings that were prepared by Town employees in response to a verbal complaint did not satisfy the prior written notice requirement (see Spanos v. Town of Clarkstown, 81 A.D.3d 711, 713, 916 N.Y.S.2d 181 ; Kiszenik v. Town of Huntington, 70 A.D.3d 1007, 1008, 895 N.Y.S.2d 208 ; McCarthy v. City of White Plains, 54 A.D.3d 828, 829–830, 863 N.Y.S.2d 500 ). In addition, the system-generated email dated November 23, 2009, concerning the removal of a tree located adjacent to the subject sidewalk, which was sent to, among others, a local council member, did not satisfy the statutory requirement that written notice be “manually transcribed by the complainant,” and be given to the Town Superintendent of Highways or the Town Clerk (see Code of the Town of North Hempstead § 26–1; Vardoulias v. County of Nassau, 84 A.D.3d 787, 788–789, 923 N.Y.S.2d 577 ; Kiszenik v. Town of Huntington, 70...