| Pangerl v Town of N. Hempstead |
| 2010 NY Slip Op 06624 [76 AD3d 1001] |
| September 21, 2010 |
| Appellate Division, Second Department |
| Alfred J. Pangerl, Respondent, v Town of NorthHempstead et al., Appellants. |
—[*1] Pillinger Miller Tarallo, LLP, Elmsford, N.Y. (David E. Hoffberg of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Nassau County (Woodard, J.), entered July 23, 2009, which denied theirmotion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff alleges that he was injured on May 6, 2004, when he slipped and fell in a muddyarea located at the defendants' property on West Shore Road in Port Washington (hereinafter thesubject premises). On the date of the incident, the plaintiff was employed as a delivery person fora company which provided truck parts to the defendant Town of North Hempstead and alsocontracted with the Town to remove used batteries. After making a delivery to the garage at thesubject premises, the plaintiff drove his truck to a shed area behind the garage to pick up usedbatteries. In order to access the shed and retrieve the batteries, the plaintiff backed his truck overan area of water and mud and parked it a few feet from the entrance to the shed. While loading abattery into the rear of his truck, the plaintiff allegedly was injured when he slipped on the mudand fell to the ground.
Thereafter, the plaintiff commenced this action, and the defendants moved for summaryjudgment dismissing the complaint on the ground, inter alia, that they had not received priorwritten notice of the alleged dangerous or defective condition pursuant to section 26-1 of theTown Code of the Town of North Hempstead. The Supreme Court denied the motion. We affirm.
The defendants failed to demonstrate their prima facie entitlement to judgment as a matter oflaw on the ground that they had no prior written notice as they failed to submit proof of such lackof notice from the proper municipal official (see Town of North Hempstead Code§ 26-1 et seq.; LiFrieri vTown of Smithtown, 72 AD3d 750 [2010], lv denied 15 NY3d 706 [2010]; San Marco v Village/Town of MountKisco, 57 AD3d 874, 876 [2008]; Koehler v Incorporated Vil. of Lindenhurst, 42 AD3d 438 [2007];Silburn v City of Poughkeepsie, 28AD3d 468, 469 [2006]). [*2]As such, the burden did not shiftto the plaintiff to raise a triable issue of fact as to either prior written notice or a recognizedexception to that requirement, as is relevant here, that the defendants affirmatively created thedangerous condition through an act of negligence (cf. Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Kiszenik v Town of Huntington, 70AD3d 1007, 1007-1008 [2010]). In any event, even had the defendants demonstrated a lackof prior written notice, the plaintiff raised a triable issue of fact as to whether or not thedefendants, by regularly washing Town equipment on a "wash rack" near the shed area,affirmatively created the dangerous condition and that the alleged affirmative act of negligenceimmediately resulted in the existence of the dangerous condition (see Oboler v City of New York, 8NY3d 888, 889-890 [2007]; Weberv Town of Hempstead, 58 AD3d 617, 617-618 [2009]).
The defendants' remaining contentions either are without merit or have been renderedacademic by our determination. Dillon, J.P., Dickerson, Lott and Austin, JJ., concur. [PriorCase History: 2009 NY Slip Op 31699(U).]