| Powell v Town of Hempstead |
| 2009 NY Slip Op 03499 [61 AD3d 950] |
| April 28, 2009 |
| Appellate Division, Second Department |
| Carla J. Powell et al., Appellants, v Town of Hempstead,Respondent. |
—[*1] Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and Merril S.Biscone of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Nassau County (O'Connell, J.), entered January 18, 2008,which, upon the granting of the defendant's motion, inter alia, in effect, pursuant to CPLR 4404(a) to set aside a jury verdict in their favor and against the defendant on the issue of liability, andfor judgment as a matter of law, is in favor of the defendant and against them dismissing thecomplaint.
Ordered that the judgment is affirmed, with costs.
The Supreme Court properly granted those branches of the defendant's motion which were,in effect, pursuant to CPLR 4404 (a) to set aside a jury verdict on the issue of liability and forjudgment as a matter of law. In general, where, as here, a local law or ordinance requires priorwritten notice of a highway defect, a municipality cannot be held liable for injuries allegedlycaused by that defect absent prior written notice of that defect (see Amabile v City ofBuffalo, 93 NY2d 471, 474 [1999]; San Marco v Village/Town of Mount Kisco, 57 AD3d 874, 876[2008]). "However, such liability may attach (1) 'where the locality created the defect or hazardthrough an affirmative act of negligence' or (2) 'a "special use" confers a special benefit upon thelocality' " (San Marco v Village/Town of Mount Kisco, 57 AD3d at 876, quotingAmabile v City of Buffalo, 93 NY2d at 474).
Here, no evidence was presented at trial to show that the defendant received notice of the[*2]parking field defect involved in the injured plaintiff'saccident so as to satisfy the prior written notice requirement of the Town of Hempstead Code(see Town of Hempstead Code § 6-2; McCarthy v City of White Plains, 54 AD3d 828, 829-830 [2008];Wilkie v Town of Huntington, 29AD3d 898 [2006]; Tuzzolo v Town of Hempstead, 292 AD2d 446 [2002];Gellos v Town of Hempstead, 284 AD2d 370 [2001]; Roth v Town of N.Hempstead, 273 AD2d 215 [2000]). Additionally, no evidence was presented demonstratingthe applicability of either of the exceptions to the prior written notice requirement. Accordingly,since there is no valid line of reasoning and permissible inferences which could possibly lead arational person to the conclusion reached by the jury on the basis of the evidence presented attrial, the Supreme Court properly granted those branches of the defendant's motion which wereto set aside the verdict and for judgment as a matter of law (see Cohen v HallmarkCards, 45 NY2d 493, 499 [1978]; Amachee v Mohammed, 57 AD3d 812 [2008]).
The plaintiffs' remaining contentions either need not be addressed in light of ourdetermination or are without merit. Fisher, J.P., Miller, Chambers and Austin, JJ., concur.