| Urquhart v Town of Oyster Bay |
| 2011 NY Slip Op 05257 [85 AD3d 899] |
| June 14, 2011 |
| Appellate Division, Second Department |
| Koren Urquhart, Respondent, v Town of Oyster Bay,Appellant, et al., Defendant. |
—[*1] Kaplan Belsky Ross Bartell, LLP, Garden City, N.Y. (Lewis A. Bartell of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant Town of Oyster Bayappeals from an interlocutory judgment of the Supreme Court, Nassau County (Woodard, J.),entered July 27, 2010, which, upon an order of the same court entered July 14, 2010, denying itsmotion pursuant to CPLR 4401 for judgment as a matter of law on the issue of liability, and upona jury verdict on the issue of liability finding it 65% at fault in the happening of the accident andthe plaintiff 35% at fault, is in favor of the plaintiff and against it, adjudging it 65% at fault in thehappening of the accident.
Ordered that the interlocutory judgment is reversed, on the law, with costs, the motion of thedefendant Town of Oyster Bay pursuant to CPLR 4401 for a judgment as a matter of law isgranted, the complaint is dismissed insofar as asserted against that defendant, and the orderentered July 14, 2010, is modified accordingly.
A motion for judgment as a matter of law pursuant to CPLR 4401 may be granted only whenthe trial court determines that, upon the evidence presented, there is no rational process by whichthe jury could find in favor of the nonmoving party (see Szczerbiak v Pilat, 90 NY2d553, 556 [1997]; Alicea v Ligouri,54 AD3d 784 [2008]). In considering such a motion, "the trial court must afford the partyopposing the motion every inference which may properly be drawn from the facts presented, andthe facts must be considered in a light most favorable to the nonmovant" (Szczerbiak vPilat, 90 NY2d at 556; see Cathey vGartner, 15 AD3d 435, 436 [2005]). Under the circumstances presented here, there wasno rational process by which the jury could find in favor of the plaintiff.
A municipality that has enacted a prior written notice law is excused from liability forconditions subject to the prior written notice law absent proof of prior written notice or arecognized exception thereto (see Poirier v City of Schenectady, 85 NY2d 310, 313[1995]; De La Reguera v City of MountVernon, 74 AD3d 1127 [2010]; Marshall v City of New York, 52 AD3d 586 [2008]; Akcelik v Town of Islip, 38 AD3d483, 484 [2007]). The Court of Appeals has recognized two exceptions to this rule, "namely,where the locality created the defect or hazard through an affirmative act of negligence" and"where a special use [*2]confers a special benefit upon thelocality" (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999] [internal quotation marksomitted]; see Melendez v City of NewYork, 72 AD3d 913 [2010]; Schleif v City of New York, 60 AD3d 926, 928 [2009]; Desposito v City of New York, 55AD3d 659, 660 [2008]). Contrary to the plaintiff's contention, upon the evidence presentedat trial, no valid line of reasoning and permissible inferences could possibly have led rationaljurors to conclude, as contended by the plaintiff, that the defendant Town of Oyster Bay's saltingand sanding operation resulted in a dangerous condition, or exacerbated a previously existingdangerous condition, in the parking lot where she slipped and fell on icy ground (cf. San Marco v Village/Town of MountKisco, 16 NY3d 111 [2010]). Mastro, J.P., Angiolillo, Chambers and Cohen, JJ.,concur.