| Regan v Town of N. Hempstead |
| 2009 NY Slip Op 07611 [66 AD3d 863] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Elsie Regan 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 from an orderof the Supreme Court, Nassau County (Palmieri, J.), entered August 8, 2008, which granted thatbranch of the motion of the defendant Town of North Hempstead which was for summaryjudgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff Elsie Regan allegedly was injured when she tripped and fell over a raisedportion of sidewalk in front of premises located in New Hyde Park. As a result, the injuredplaintiff and her husband Tom Regan, suing derivatively, commenced this action to recoverdamages for personal injuries, against, among others, the Town of North Hempstead. The Townmoved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it,contending that it did not have prior written notice of the alleged sidewalk defect, as required bythe Town of North Hempstead Code § 26-1. The Supreme Court granted that branch of theTown's motion. We affirm.
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]; Marshallv City of New York, 52 AD3d 586 [2008]; Gilmore v Village of Hempstead, 47 AD3d 676 [2008]). The Courtof Appeals has recognized two exceptions to this rule "namely, where the locality created thedefect or hazard through an affirmative act of negligence" and "where a 'special use' confers aspecial benefit upon the locality" (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999];see Trinidad v City of Mount Vernon,51 AD3d 661 [2008]; Delgadov County of Suffolk, 40 AD3d 575 [2007]).
Here, the Town established its entitlement to judgment as a matter of law by demonstrating,prima facie, that it did not have prior written notice of the alleged sidewalk defect (seeTown of North Hempstead Code § 26-1; Delgado v County of Suffolk, 40 AD3d 575 [2007]). In opposition,the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact (see McCarthyv City of White Plains, [*2]54 AD3d 828 [2008]).
Accordingly, the Supreme Court properly granted that branch of the Town's motion whichwas for summary judgment dismissing the complaint insofar as asserted against it. Dillon, J.P.,Eng, Belen and Hall, JJ., concur. [See 2008 NY Slip Op 31777(U).]