Beiner v Village of ScarsdaleBeiner v Village of Scarsdale
Don David Carlucci, Scarsdale, NY, for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Wood, J.), dated March 22, 2016, which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant‘s motion for summary judgment dismissing the complaint is granted.
The plaintiff allegedly tripped on an unlevel slab of bluestone sidewalk in the Village of Scarsdale (hereinafter the defendant), fracturing her wrist. In her notice of claim, verified complaint, and verified bill of particulars, the plaintiff alleged that the defendant affirmatively created the defective condition by virtue of its design, selection, and installation of the sidewalk and that it negligently maintained and repaired the sidewalk. The defendant moved for summary judgment dismissing the complaint, arguing that it had not received prior written notice of the alleged defect as required by
“Where, as here, 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” (Palka v Village of Ossining, 120 AD3d 641, 641 [2014]; see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]). There are two “recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality” (Yarborough v City of New York, 10 NY3d 726, 728 [2008]). The affirmative act exception, the only exception at issue here, ” ‘is limited to work by the [municipality] that immediately results in the existence of a dangerous condition’ ” (id. at 728, quoting Oboler v City of New York, 8 NY3d 888, 889 [2007]).
“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” (Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2010]). The plaintiff alleged, in her pleadings, that the defendant negligently maintained and repaired the sidewalk and affirmatively created the defective condition that caused the accident. Thus, to establish its prima facie entitlement to judgment as a
The defendant made a prima facie showing of entitlement to judgment as a matter of law by providing the affidavit of the Village Clerk, which indicated that she conducted a records search and found no prior written notice of a defective condition at the location alleged by the plaintiff (see Pagano v Town of Smithtown, 74 AD3d 1304, 1305 [2010]). Furthermore, the defendant established, prima facie, that it did not create the allegedly defective condition through an affirmative act of negligence (see Lima v Village of Garden City, 131 AD3d at 948).
In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff‘s contention, evidence suggesting that the defendant actually knew of the alleged defect did not satisfy the requirement in
Accordingly, the Supreme Court should have granted the defendant‘s motion for summary judgment dismissing the complaint. Leventhal, J.P., Hall, Sgroi and Duffy, JJ., concur.