| Vardoulias v County of Nassau |
| 2011 NY Slip Op 03836 [84 AD3d 787] |
| May 3, 2011 |
| Appellate Division, Second Department |
| Dina Vardoulias, Respondent, v County of Nassau,Appellant, et al., Defendant. |
—[*1] Andrew C. Laufer, PLLC, New York, N.Y. (Stephen Chakwin of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant County of Nassauappeals from a judgment of the Supreme Court, Nassau County (Galasso, J.), entered November20, 2009, which, upon a jury verdict on the issue of liability finding it 70% at fault in thehappening of the accident, and upon the denial of its motion pursuant to CPLR 4401 forjudgment as a matter of law, is in favor of the plaintiff and against it in the total sum of$142,706.60.
Ordered that the judgment is reversed, on the law, with costs, the motion of the defendantCounty of Nassau pursuant to CPLR 4401 for a judgment as a matter of law is granted, and thecomplaint is dismissed insofar as asserted against the defendant County of Nassau.
The plaintiff commenced this personal injury action against the defendant County of Nassauclaiming that a dangerous condition on a county sidewalk caused her to trip and fall. The NassauCounty Recreation and Parks Department received prior written notice of the alleged conditionon two occasions, approximately 10 months and 4 months before the accident, respectively.
Nassau County has a prior written notice statute in effect which provides, in relevant part,that "[n]o civil action shall be maintained against the County for damages or injuries to person orproperty sustained by reason of any sidewalk . . . unless written notice of suchdefective, unsafe, dangerous or obstructed condition of such sidewalk [is given] . . .[and s]uch written notice shall specify the particular place and nature of such defective, unsafe,dangerous or obstructed condition . . . [and that n]otice required to be given asherein provided shall be made in writing by certified or registered mail directed to the Office ofthe County Attorney" (Nassau County Administrative Code § 12-4.0 [e]).
Following joinder of issue, the case proceeded to a jury trial. At the completion of theplaintiff's case, the County moved for judgment as a matter of law on the ground that the plaintifffailed to establish a prima facie case. The County contended that the Office of the CountyAttorney had not received prior written notice of the alleged dangerous condition as required byNassau County [*2]Administrative Code § 12-4.0 (e). TheSupreme Court denied the motion. The jury returned a verdict finding the County 70% at fault inthe happening of the accident and awarded damages. We reverse.
Prior written notice provisions are always strictly construed (see Gorman v Town of Huntington, 12NY3d 275, 279 [2009]; Delaney vTown of Islip, 63 AD3d 658, 659 [2009]) and, absent prior written notice of a dangerousor defective condition where a written notice statute is in effect, a municipality cannot be heldliable for injuries (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Jacobs v Village of Rockville Ctr., 41AD3d 539, 540 [2007]). Although this Court has recognized the existence of two exceptionsin which the lack of prior written notice may be excused (see Amabile v City of Buffalo,93 NY2d at 474), the plaintiff does not contend that either exception applies.
Here, it is undisputed that the Office of the County Attorney, as statutory designee, did notreceive prior written notice of the alleged defective sidewalk. The fact that the Nassau CountyRecreation and Parks Department received prior written notice did not satisfy the statutoryrequirement that prior written notice be given to the Office of the County Attorney (seeGorman v Town of Huntington, 12 NY3d at 279; Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]).
The County's remaining contention has been rendered academic in light of our determination.Rivera, J.P., Skelos, Sgroi and Miller, JJ., concur.