| Trinidad v City of Mount Vernon |
| 2008 NY Slip Op 04345 [51 AD3d 661] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Brunilda Trinidad et al., Respondents, v City of MountVernon, Appellant, et al., Defendants. |
—[*1] Kahn Gordon Timko & Rodriques, P.C., New York, N.Y. (Nicholas I. Timko of counsel), forrespondents. Thomas M. Bona, P.C., White Plains, N.Y. (Robert H. Steindorf and Joseph F. Dursi, Jr., ofcounsel), for defendants.
In an action to recover damages for personal injuries, etc., the defendant City of MountVernon appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), enteredFebruary 27, 2007, which denied its motion for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendantCity of Mount Vernon for summary judgment dismissing the complaint insofar as assertedagainst it is granted.
A municipality that has enacted a prior written notice law cannot be held liable for a defectwithin the meaning of the law absent proof of prior written notice or an exception thereto (seePoirier v City of Schenectady, 85 NY2d 310, 313 [1995]; Barry v Niagara Frontier Tr.Sys., 35 NY2d 629, 633-634 [1974]). The Court of Appeals has recognized two exceptionsto this rule, "namely, where the locality created the defect or hazard through an affirmative act ofnegligence [and] where a 'special use' confers a special benefit upon the locality" (Amabile vCity of Buffalo, 93 NY2d 471, 474 [1999]; see [*2]Delgado v County of Suffolk, 40AD3d 575 [2007]; Lopez v G&JRudolph Inc., 20 AD3d 511, 512 [2005]). "[T]he affirmative negligence exception. . . [is] limited to work by the City that immediately results in the existence of adangerous condition" (Bielecki v City ofNew York, 14 AD3d 301, 301 [2005]; see Oboler v City of New York, 8 NY3d 888, 889 [2007]; Daniels v City of New York, 29 AD3d514, 515 [2006]).
Here, the defendant City of Mount Vernon established its entitlement to judgment as a matterof law by submitting evidence establishing that it had no prior written notice of the defectivecondition in the sidewalk which allegedly caused the injured plaintiff's fall (see Smith v Town of Brookhaven, 45AD3d 567 [2007]; Filaski-Fitzgerald v Town of Huntington, 18 AD3d 603, 604[2005]; Gold v County of Westchester,15 AD3d 439, 440 [2005]). In opposition, the plaintiffs failed to submit evidencesufficient to raise a triable issue of fact as to whether the City created the alleged defect throughan affirmative act of negligence. While there was some evidence that the City performed waterservice work at or near the accident site more than seven years before the accident, there waslegally insufficient proof that the defective condition existed immediately upon the City'scompletion of the repair work, or that the deterioration of the sidewalk was caused by the City'srepair, instead of developing over a period of time (see Daniels v City of New York, 29AD3d at 515; Bielecki v City of New York, 14 AD3d at 301). Accordingly, the SupremeCourt should have granted the City's motion for summary judgment dismissing the complaintinsofar as asserted against it. Prudenti, P.J., Fisher, Miller and Balkin, JJ., concur.