| Hirasawa v City of Long Beach |
| 2008 NY Slip Op 10128 [57 AD3d 846] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Rei Hirasawa, Appellant, v City of Long Beach et al.,Respondents. |
—[*1] Corey E. Klein, Corporation Counsel, Long Beach, N.Y. (Samuel Littman of counsel), forrespondent City of Long Beach. Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), forrespondent ADJO Contracting Corp.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of theSupreme Court, Nassau County (Brandveen, J.), dated August 23, 2007, which granted the separatemotions of the defendant ADJO Contracting Corp. and the defendant City of Long Beach for summaryjudgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with one bill of costs.
The plaintiff alleges that she was injured on June 5, 2004 when she tripped over a metal plateprotruding from a median located on Grand Boulevard in the defendant City of Long Beach. Theconcrete curb, which had been constructed around the median approximately 18 months before theaccident, was missing from the area around the metal plate upon which the plaintiff allegedly fell.Thereafter, the plaintiff commenced this action against the City and ADJO Contracting Corp.(hereinafter ADJO), the construction company which had contracted with the City to build the subjectcurbs around the median.
The Supreme Court properly granted the motion of ADJO for summary judgment dismissing thecomplaint insofar as asserted against it. The evidence submitted by ADJO in support of its motion forsummary judgment established, prima facie, that it neither created nor had actual or constructive noticeof the condition that caused the plaintiff's accident (see Piacquadio v Recine [*2]Realty Corp., 84 NY2d 967, 969 [1994]; Erikson v J.I.B. Realty Corp., 12 AD3d344, 346 [2004]). In opposition, the plaintiff failed to raise a triable issue of fact as to whetherADJO created the alleged hazardous condition (see Alger v CVS Mack Drug of N.Y., LLC, 39 AD3d 928, 929[2007]; Feuer v Vernon Manor Coop. Apts., Section I, 303 AD2d 448, 448-449 [2003];Dominitz v Food Emporium, 271 AD2d 640 [2000]). Although the plaintiff's expert stated inan affidavit that ADJO failed to properly cure the concrete curb for the required period of time beforevehicles were permitted on the abutting roadway, there is no mention of the metal plate adjacent to thecurb, which ADJO denied installing or having knowledge of. Indeed, the plaintiff failed to establish anyconnection between the missing curb and the metal plate, which she alleged caused her accident.
The Supreme Court also properly granted the City's motion for summary judgment dismissing thecomplaint insofar as asserted against it. "A municipality that has enacted a prior written notice law isexcused from liability absent proof of prior written notice or an exception thereto" (Carlo v Town of Babylon, 55 AD3d769, 770 [2008]; see Poirier v City of Schenectady, 85 NY2d 310, 314 [1995]; Rodriguez v City of Mount Vernon, 51AD3d 900 [2008]). The Court of Appeals has recognized two exceptions to this rule, "namely,where the locality created the defect or hazard through an affirmative act of negligence" and "where a'special use' confers a special benefit upon the locality" (Amabile v City of Buffalo, 93 NY2d471, 474 [1999]; see also Delgado v Countyof Suffolk, 40 AD3d 575 [2007]; Lopez v G&J Rudolph Inc., 20 AD3d 511, 512 [2005]). "Further, 'theaffirmative negligence exception . . . [is] limited to work by the City thatimmediately results in the existence of a dangerous condition' " (Oboler v City of New York, 8 NY3d888, 889-890 [2007] [emphasis added], quoting Bielecki v City of New York, 14 AD3d 301 [2005]).
Applying these principles here, the City established its entitlement to judgment as a matter of law bysubmitting evidence that it had no prior written notice of the allegedly defective condition which causedthe plaintiff's fall (see Smith v Town ofBrookhaven, 45 AD3d 567, 568 [2007]; Filaski-Fitzgerald v Town of Huntington, 18 AD3d 603, 604 [2005]; Gold v County of Westchester, 15 AD3d439, 440 [2005]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triableissue of fact as to her contention that the City created the alleged defect through an affirmative act ofnegligence. Although the City had supervised ADJO's work, the plaintiff failed to submit evidence thatthe defective condition existed immediately upon the completion of the repair work (see Daniels v City of New York, 29 AD3d514 [2006]; Bielecki v City of New York, 14 AD3d at 301). Mastro, J.P., Miller, Balkinand McCarthy, JJ., concur.