| Carlo v Town of Babylon |
| 2008 NY Slip Op 08080 [55 AD3d 769] |
| October 21, 2008 |
| Appellate Division, Second Department |
| Mary Ann Carlo et al., Appellants, v Town of Babylon,Respondent. |
—[*1] Besen and Trop, LLP, Garden City, N.Y. (Stuart P. Besen of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of theSupreme Court, Suffolk County (Doyle, J.), dated July 24, 2007, which granted the defendant's motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
While the plaintiff Mary Ann Carlo (hereinafter the plaintiff) was walking on a brick pathway at theTown Hall Park in the defendant Town of Babylon, she failed to note the height differential between theedge of the brick pathway and the abutting landscaped area due to overgrown grass and weeds,twisted her ankle and fell. As a result, the plaintiff and her husband, derivatively, commenced this actionagainst the defendant. The defendant moved for summary judgment dismissing the complaint,contending, inter alia, that it did not have prior written notice of the alleged defect.
A municipality that has enacted a prior written notice law is excused from liability absent proof ofprior written notice or an exception thereto (see Poirier v City of Schenectady, 85 NY2d 310,313 [1995]; Smith v Town ofBrookhaven, 45 AD3d 567 [2007]). The Court of Appeals has recognized two exceptions tothis 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 v City ofBuffalo, 93 NY2d 471, 474 [1999]; seeDelgado v County of Suffolk, 40 AD3d 575 [2007]).[*2]
The defendant established its entitlement to judgment as amatter of law by demonstrating that it did not have prior written notice of the alleged defective condition(see Poirier v City of Schenectady, 85 NY2d 310 [1995]; Smith v Town of Brookhaven, 45 AD3d 567 [2007]). In opposition, theplaintiffs failed to submit evidence sufficient to raise a triable issue of fact as to whether the defendantaffirmatively created the alleged defective condition (see Monteleone v Incorporated Vil. of FloralPark, 74 NY2d 917 [1989]; Lowenthal v Theodore H. Heidrich Realty Corp., 304 AD2d725 [2003]; Zawacki v Town of N. Hempstead, 184 AD2d 697 [1992]; Zizzo v City ofNew York, 176 AD2d 722 [1991]; cf.Bohm v Town of Brookhaven, 43 AD3d 454 [2007]). Accordingly, the Supreme Courtproperly granted the defendant's motion for summary judgment. Santucci, J.P., Dillon, Dickerson andChambers, JJ., concur.