| Smith v Town of Brookhaven |
| 2007 NY Slip Op 08438 [45 AD3d 567] |
| November 7, 2007 |
| Appellate Division, Second Department |
| John R. Smith, Respondent, v Town of Brookhaven,Appellant. |
—[*1] Baxter, Smith, Tassan & Shapiro, P.C., Jericho, N.Y. (Sim R. Shapiro and Arthur J. Smith ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Spinner, J.), dated August 21, 2006, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the motion for summaryjudgment dismissing the complaint is granted.
A municipality that has enacted a prior written notice law is excused from liability absentproof of prior written notice or an exception thereto (see Poirier v City of Schenectady,85 NY2d 310 [1995]; Perrington v Cityof Mount Vernon, 37 AD3d 571 [2007]). The Court of Appeals has recognized twoexceptions to this rule, "namely, where the locality created the defect or hazard through anaffirmative act of negligence . . . and where a 'special use' confers a special benefitupon the locality" (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; see Delgado v County of Suffolk, 40AD3d 575 [2007]; Padula v City ofLong Beach, 20 AD3d 555 [2005]; Lopez v G&J Rudolph Inc., 20 AD3d 511 [2005]). Here, thedefendant established its entitlement to judgment as a matter of law by demonstrating that it didnot have prior written notice of the pothole which allegedly caused the plaintiff to fall from hismotor scooter (see Delgado v County of Suffolk, 40 AD3d at 575; Lopez v G&JRudolph Inc., 20 AD3d at 511; Madtes v Town of Brookhaven, 275 AD2d 443[2000]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue offact as to whether the pothole was created by the defendant's affirmative act of negligence infailing to construct and/or maintain a proper drainage [*2]system.The opinion of the plaintiff's expert that the nearby storm drain sewer was inadequate, causingthe street to constantly flood, freeze, thaw, and erode, because the storm drain sewer was underwater when he inspected it three years after the accident, was speculative (see DeCarlo v Village of Dobbs Ferry,36 AD3d 749 [2007]). At best, the expert's affidavit showed that the pothole formed over acourse of years as a result of wear and tear and environmental factors, which cannot be deemedan affirmative act of negligence (seeHyland v City of New York, 32 AD3d 822 [2006]; Yarborough v City of New York, 28 AD3d 650 [2006]). Miller,J.P., Ritter, Santucci and Balkin, JJ., concur.