| Jason v Town of N. Hempstead |
| 2009 NY Slip Op 03483 [61 AD3d 936] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Janis Jason et al., Appellants, v Town of NorthHempstead, Respondent, et al., Defendants. |
—[*1] Richard S. Finkel, Town Attorney, Manhasset, N.Y. (William J. Gillman of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.),entered November 26, 2007, as granted that branch of the motion of the defendant Town ofNorth Hempstead which was for summary judgment dismissing the complaint insofar as assertedagainst it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff Janis Jason (hereinafter the injured plaintiff) allegedly was injured when, as shestepped off of a sidewalk and onto a street maintained by the defendant Town of NorthHempstead, she slipped and fell on a sloped concrete "gutter slab" on the street. Subsequently,alleging, among other things, that the gutter slab constituted a dangerous condition, the injuredplaintiff and her husband, suing derivatively, commenced the instant personal injury actionagainst, among others, the Town.
On its motion, inter alia, for summary judgment dismissing the complaint insofar as assertedagainst it, the Town made a prima facie showing of entitlement to judgment as a matter of law byproviding evidence demonstrating that it lacked prior written notice of the allegedly dangerouscondition, as required by North Hempstead Code § 26-1 (see Smith v Village ofRockville Ctr., [*2]57 AD3d 649, 650 [2008]). In opposition,the plaintiffs failed to raise a triable issue of fact as to whether the Town received prior writtennotice, or as to the applicability of either of the "two recognized exceptions to the prior writtennotice requirement" (McCarthy v Cityof White Plains, 54 AD3d 828, 830 [2008]; see Amabile v City of Buffalo, 93NY2d 471, 474 [1999]). Although the plaintiffs attempted to raise an issue of fact as to theapplicability of the "affirmative negligence exception," they failed to provide any evidencetending to show that the allegedly dangerous condition was created through an affirmative act ofnegligence of the Town, and that such act immediately resulted in that condition's existence (see Yarborough v City of New York,10 NY3d 726, 728 [2008]; Oboler v City of New York, 8 NY3d 888, 889 [2007]; San Marco v Village/Town of MountKisco, 57 AD3d 874, 876-877 [2008]). Furthermore, although the plaintiffs attemptedto raise an issue of fact as to the applicability of the "special use exception," they failed todemonstrate that the gutter slab conferred a special benefit upon the Town (see Loiaconi v Village of Tarrytown,36 AD3d 864, 865 [2007]; Lopez v G&J Rudolph Inc., 20 AD3d 511, 513 [2005];Braunstein v County of Nassau, 294 AD2d 323 [2002]; Barnes v City of MountVernon, 245 AD2d 407, 408 [1997]; Vise v County of Suffolk, 207 AD2d 341, 342[1994]). Accordingly, the Supreme Court properly granted that branch of the Town's motionwhich was for summary judgment dismissing the complaint insofar as asserted against the Town.Mastro, J.P., Dillon, Covello and Dickerson, JJ., concur.