| Danis v Incorporated Vil. of Atl. Beach |
| 2010 NY Slip Op 05721 [74 AD3d 1273] |
| June 29, 2010 |
| Appellate Division, Second Department |
| Susan Danis, Respondent, v Incorporated Village ofAtlantic Beach, Appellant. |
—[*1] Marshal Coleman, New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Nassau County (Feinman, J.), entered March 24, 2010, which denied itsmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
"A municipality that has adopted a prior written notice law cannot be held liable for injuriessustained as a result of an alleged defect on its property, absent the requisite notice, unless anexception to the notice requirement applies" (Lopez v Town of Hempstead, 50 AD3d645, 646 [2008]; see Delgado v County of Suffolk, 40 AD3d 575 [2007]). Twoexceptions have been recognized to prior written notice rules (see Lopez v Town ofHempstead, 50 AD3d 645 [2008]). The first is when the municipality has created thedangerous or defective condition through an affirmative act of negligence (see Amabile vCity of Buffalo, 93 NY2d 471 [1999]). The second exception is when a "special use" confersa benefit upon the municipality (id. at 474).
Here, the defendant established, prima facie, that it did not have prior written notice of thedefective or dangerous condition on the boardwalk that allegedly caused the plaintiff's accident.In opposition to the defendant's motion for summary judgment, however, the plaintiff raised atriable issue of fact with respect to whether the defendant affirmatively created the dangerouscondition on the boardwalk that caused her accident. Accordingly, the Supreme Court properlydenied the defendant's motion for summary judgment dismissing the complaint (see generallyAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Dillon, J.P., Miller, Eng andChambers, JJ., concur.