| Politis v Town of Islip |
| 2011 NY Slip Op 02645 [82 AD3d 1191] |
| March 29, 2011 |
| Appellate Division, Second Department |
| George Politis, Appellant, v Town of Islip,Respondent. |
—[*1] Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, N.Y. (Candace M. Bartone of counsel),for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Gazzillo, J.), dated January 26, 2010, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On March 8, 2005, the plaintiff, a Suffolk County Police Officer, tripped and fell into apothole while on duty, and as he was walking back to his patrol car in the westbound lane fortravel in front of premises known as 71 Cinnamon Street in Central Islip. The plaintiff's partnerprepared a field report noting that he observed a pothole measuring three feet long by 10 incheswide in the westbound lane for travel in front of 71 Cinnamon Street, and another measuringthree feet long by two feet wide in the eastbound lane.
The plaintiff commenced this action against the defendant Town of Islip to recover damagesunder a theory of common-law negligence and pursuant to General Municipal Law §205-e, alleging that the Town was negligent and violated its duty under Code of the Town of Islip§ 41-5 (B) (1) (a) to maintain Cinnamon Street in a safe manner. In its answer, the Townasserted, as an affirmative defense, among other things, that the action was barred pursuant toTown Law § 65-a and Code of the Town of Islip § 47A-3, since the Town had noprior written notice of the allegedly defective condition. In the order appealed from, the SupremeCourt granted the Town's motion for summary judgment dismissing the complaint. We affirm.
The Town established its prima facie entitlement to judgment as a matter of law byestablishing its enactment of Code of the Town of Islip § 47A-3, a prior written notice law,and submitting an affidavit of a Project Supervisor of its Department of Public Works, whostated that his search of the Town's records revealed no prior written notice of a defectivecondition in the roadway where the accident occurred (see Town Law § 65-a [1];Code of Town of Islip § 47A-3 [A]; Spanos v Town of Clarkstown, 81 AD3d 711[2011]; Regan v Town of N. Hempstead, 66 AD3d 863, 864 [2009]; McCarthy v Cityof White Plains, 54 AD3d 828, 829 [2008]; Augustine v Town of Islip, 28 AD3d503, 503 [2006]).[*2]
In response, the plaintiff failed to raise a triable issue offact as to whether there was such prior written notice (see McCarthy v City of WhitePlains, 54 AD3d at 829). Contrary to the plaintiff's contention, the Town's computer databaserecording of telephonic complaints concerning Cinnamon Street did not constitute prior writtennotice so as to satisfy the requirements of the Town Law or the Code of the Town of Islip (seeGorman v Town of Huntington, 12 NY3d 275, 279 [2009]; Kiszenik v Town ofHuntington, 70 AD3d 1007, 1008 [2010]; McCarthy v City of White Plains, 54AD3d at 829-830).
Similarly, the plaintiff failed to raise a triable issue of fact as to whether either one of the twoexceptions to the prior written notice requirement—an affirmative act of negligence by theTown in creating or exacerbating a dangerous condition or a special use by theTown—applied to this action (see Amabile v City of Buffalo, 93 NY2d 471, 474[1999]; Jason v Town of N. Hempstead, 61 AD3d 936, 936-937 [2009]; Cimino vCity of White Plains, 65 AD3d 1069 [2009]; McCarthy v City of White Plains, 54AD3d at 830). The Supreme Court properly determined that the plaintiff's opposition to themotion was speculative and insufficient to raise a triable issue of fact as to either of theseexceptions to the prior written notice requirement (see Mallory v City of New Rochelle,41 AD3d 556 [2007]; Hyland v City of New York, 32 AD3d 822, 823 [2006]).
Moreover, contrary to the plaintiff's contention, he was required to comply with the priorwritten notice requirement to sustain his second cause of action alleging a violation of GeneralMunicipal Law § 205-e (see Montalvo v City of New York, 46 AD3d 772, 773[2007]).
The plaintiff's remaining contention is without merit. Skelos, J.P., Balkin, Austin and Sgroi,JJ., concur.