| De La Reguera v City of Mount Vernon |
| 2010 NY Slip Op 05504 [74 AD3d 1127] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Mercedes De La Reguera, Respondent, v City of MountVernon, Appellant. |
—[*1] Abraham, Lerner & Arnold, LLP, New York, N.Y. (Charles M. Arnold of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Westchester County (Smith, J.), dated May 20, 2009, which denied itsmotion 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 August 30, 2006, the plaintiff allegedly was injured when she tripped on a pothole in the"permit only" area of a parking lot owned by the defendant, the City of Mount Vernon. Theplaintiff possessed a city-issued permit allowing her to park in the "permit only" parking spaceswithin the parking lot, for which she paid a fee. The plaintiff commenced this action against theCity and, thereafter, the City moved for summary judgment dismissing the complaint on theground that it had not received prior written notice of the alleged defect, as required by the City'sprior written notice law (see Charter of the City of Mount Vernon § 265). TheSupreme Court denied the motion. We reverse.
"Where, as here, a municipality has enacted a prior written notice statute, it may not besubjected to liability for injuries caused by an improperly maintained roadway unless either ithas received prior written notice of the defect or an exception to the prior written noticerequirement applies" (Griesbeck vCounty of Suffolk, 44 AD3d 618, 619 [2007]). The only recognized exceptions to theprior written notice requirement involve situations in which either the municipality created thedefect through an affirmative act of negligence, or a "special use" confers a special benefit uponthe municipality (see Yarborough v Cityof New York, 10 NY3d 726, 728 [2008]; Amabile v City of Buffalo, 93 NY2d471, 474 [1999]).
The City established its prima facia entitlement to judgment as a matter of law by presentingevidence that it had not received prior written notice of the defect that allegedly caused theplaintiff's injuries (see Rochford v Cityof Yonkers, 12 AD3d 433 [2004]). In opposition, the plaintiff [*2]failed to raise a triable issue of fact as to the applicability of the"special use" exception by failing to make a showing of any nexus between the alleged "specialuse" of issuing parking permits and the alleged pothole which caused her injury (see Bogorova v Incorporated Vil. of Atl.Beach, 51 AD3d 840, 841 [2008]). The plaintiff's remaining contentions are withoutmerit. Accordingly, the Supreme Court erred in denying the City's motion for summary judgmentdismissing the complaint. Rivera, J.P., Balkin, Leventhal and Roman, JJ., concur.