| Rodriguez v City of Mount Vernon |
| 2008 NY Slip Op 04676 [51 AD3d 900] |
| May 20, 2008 |
| Appellate Division, Second Department |
| Izabel Rodriguez, Respondent, v City of Mount Vernon,Appellant, et al., Defendants. |
—[*1] Robert O. Corini, New Rochelle, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant City of Mount Vernonappeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered April 6,2007, which denied its motion for summary judgment dismissing the complaint insofar asasserted 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 is excused from liability absentproof of prior written notice or an exception thereto (see Poirier v City of Schenectady,85 NY2d 310, 313 [1995]; Smith vTown of Brookhaven, 45 AD3d 567 [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, 575-576 [2007]). Here, the defendant City of Mount Vernon established itsentitlement to judgment as a matter of law by demonstrating that it did not have prior writtennotice of the allegedly dangerous condition that purportedly caused the plaintiff's fall (seeSmith v Town of Brookhaven, 45 AD3d at 568; Jacobs v Village of Rockville Ctr., 41 AD3d 539, 540 [2007]). Inopposition, the plaintiff failed to raise a triable issue of fact. Under the circumstances of thiscase, we disagree with the plaintiff's contention that the City is estopped from claiming, as adefense, the absence of [*2]prior written notice to the properstatutory designee (cf. Gorman v Townof Huntington, 47 AD3d 30 [2007]). Accordingly, the Supreme Court should havegranted the City's motion for summary judgment dismissing the complaint insofar as assertedagainst it. Mastro, J.P., Rivera, Angiolillo and McCarthy, JJ., concur.