| Denio v City of New Rochelle |
| 2010 NY Slip Op 01911 [71 AD3d 717] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Dale Denio, Respondent, v City of New Rochelle,Appellant. |
—[*1] Worby Groner Edelman LLP, White Plains, N.Y. (Michael L. Taub of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Westchester County (Liebowitz, J.), entered January 5, 2009, which deniedits motion for 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.
On February 23, 2007 the plaintiff allegedly slipped and fell on ice in the New RochelleMunicipal Marina parking lot. The plaintiff commenced this action against the City of NewRochelle alleging, inter alia, that the City created a dangerous condition.
It is undisputed that the City did not receive prior written notice of the dangerous conditionthat allegedly caused the plaintiff's accident, as required by the relevant local law (seeCity Charter of City of New Rochelle, art XII, § 127A). The City thus established itsprima facie entitlement to judgment as a matter of law, and the burden shifted to the plaintiff todemonstrate a factual issue as to the existence of an exception to the notice requirement (see Babenzien v Town of Fenton, 67AD3d 1236 [2009]). "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' " (DiGregorio v Fleet Bank of N.Y., NA,60 AD3d 722, 723 [2009], quoting Amabile v City of Buffalo, 93 NY2d 471, 474[1999]; see Babenzien v Town of Fenton, 67 AD3d at 1236; Trinidad v City of Mount Vernon, 51AD3d 661 [2008]; Delgado vCounty of Suffolk, 40 AD3d 575 [2007]).
Contrary to the Supreme Court's determination, in opposition, the plaintiff failed to raise atriable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Here, the plaintiff failed to demonstrate that the City's alleged negligence "immediatelyresult[ed] in the existence of a dangerous condition" (Yarborough v City of New York, 10 NY3d 726, 728 [2008]; see Oboler v City of New York, 8NY3d 888, 889 [2007]; San Marcov Village/Town of Mount Kisco, 57 AD3d 874, [*2]876[2008]). Nor did the plaintiff demonstrate that the City derived a special benefit unrelated to thepublic use or different from that conferred on the public at large (see Vrabel v City of NewYork, 308 AD2d 443, 444 [2003]).
Accordingly, the Supreme Court should have granted the City's motion for summaryjudgment dismissing the complaint. Fisher, J.P., Florio, Belen and Hall, JJ., concur.