| Kiszenik v Town of Huntington |
| 2010 NY Slip Op 01621 [70 AD3d 1007] |
| February 23, 2010 |
| Appellate Division, Second Department |
| Robert Kiszenik, Respondent, v Town of Huntington,Appellant. |
—[*1] Kaston Aberle Levine & Wiss, LLP, Mineola, N.Y. (Anthony A. Ferrante of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Mayer, J.), dated August 13, 2008, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
Contrary to the plaintiff's contentions and the determination of the Supreme Court, thedefendant's motion for summary judgment dismissing the complaint should have been granted.The defendant made a prima facie showing of its entitlement to judgment as a matter of law bysubmitting affidavits of its employees demonstrating that it did not receive the requisite priorwritten notice of the roadway defect upon which the plaintiff allegedly fell (seeHuntington Town Code § 174-3; Jason v Town of N. Hempstead, 61 AD3d 936[2009]; Smith v Village of Rockville Ctr., 57 AD3d 649, 650 [2008]; Demant vTown of Oyster Bay, 23 AD3d 333, 334 [2005]). This shifted the burden of proof to theplaintiff to raise a triable issue of fact as to either prior written notice or the applicability of oneof the two recognized exceptions to the prior written notice requirement, namely themunicipality's affirmative creation of the defect or its special use of the property (seeYarborough v City of New York, 10 NY3d 726, 728 [2008]; Groninger v Village ofMamaroneck, 67 AD3d 733 [2009]; Jason v Town of N. Hempstead, 61 AD3d at936-937; Gold v County of Westchester, 15 AD3d 439, 440 [2005]). The plaintiff failedto meet this burden.
With regard to the issue of notice, the plaintiff's reliance on a telephonic complaint about thealleged condition which the defendant reduced to writing is misplaced, since such a complaint isnot the equivalent of prior written notice of the condition (see Gorman v Town ofHuntington, 12 NY3d 275, 280 [2009]; McCarthy v City of White Plains, 54 AD3d828, 829-830 [2008]). Similarly, the "time and material reports" maintained by the defendant aspart of its internal records do not satisfy the prior written notice requirement (see Wilkie vTown of Huntington, 29 AD3d 898, 898 [2006]). Likewise, the prior written noticerequirement was not satisfied by a purported letter which the plaintiff vaguely testified at hisdeposition that he might have sent to the defendant's disability [*2]office, rather than to the Town Clerk or the Town Superintendentof Highways, as is required by the applicable code provision (see Gorman v Town ofHuntington, 12 NY3d at 279). The plaintiff's various additional claims of actual orconstructive notice of the defect on the part of the defendant are also unavailing (see Amabilev City of Buffalo, 93 NY2d 471, 476 [1999]; Groninger v Village of Mamaroneck,67 AD3d 733 [2009]; McCarthy v City of White Plains, 54 AD3d at 830; Wilkie vTown of Huntington, 29 AD3d 898 [2006]; Berner v Town of Huntington, 304AD2d 513 [2003]).
The plaintiff similarly failed to raise a triable issue of fact in support of his claim that anexception to the prior written notice requirement applied based on the defendant's affirmativecreation of a dangerous condition, since the plaintiff made no showing that any of the defendant'sinternal work records pertained to the defective condition upon which he allegedly fell, and theplaintiff's own testimony at his General Municipal Law § 50-h examination and depositionnegated any suggestion that the defendant repaired the subject area of the roadway. Additionally,the plaintiff failed to come forward with any evidence that any repair by the defendant wasnegligently performed (see Demant v Town of Oyster Bay, 23 AD3d at 334;Gianchetta v E.B. Mar., 258 AD2d 618 [1999]), and that the defective condition was animmediate consequence thereof (see Yarborough v City of New York, 10 NY3d at 728;Jason v Town of N. Hempstead, 61 AD3d at 937; McCarthy v City of WhitePlains, 54 AD3d at 830). Rather, the plaintiff's own testimony established that the defectarose gradually and worsened over time (see e.g. Gold v County of Westchester, 15AD3d at 440; Vise v County of Suffolk, 207 AD2d 341, 342 [1994]). Rivera, J.P.,Leventhal, Lott and Austin, JJ., concur.