| Pennamen v Town of Babylon |
| 2011 NY Slip Op 06023 [86 AD3d 599] |
| July 19, 2011 |
| Appellate Division, Second Department |
| Richard Pennamen, Respondent, v Town of Babylon,Appellant. |
—[*1] Lite & Russell, West Islip, N.Y. (Frank S. Russell of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Mayer, J.), dated June 18, 2010, which denied its motion forsummary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly tripped over a bent and defective storm drain grate located in theroadway at the end of his mother's driveway while he was carrying bags of yard debris to beplaced at the curb for pick-up. He commenced this action against the defendant, Town ofBabylon, alleging that he sustained personal injuries. The Town moved for summary judgmentdismissing the complaint, contending that it lacked prior written notice of the alleged defectivecondition. The Supreme Court denied the Town's motion. We affirm.
Where a municipality has enacted a prior written notice statute, it may not be subjected toliability for injuries arising from a defective roadway condition unless it has received priorwritten notice of the dangerous condition or an exception to the prior written notice requirementapplies (see De La Reguera v City ofMount Vernon, 74 AD3d 1127 [2010]; Lopez v G&J Rudolph Inc., 20 AD3d 511, 512 [2005]). The Courtof Appeals has recognized only two exceptions to the statutory prior written notice requirement,namely, where the municipality created the defect or hazard through an affirmative act ofnegligence or where a special use confers a benefit upon the locality (see Amabile v City ofBuffalo, 93 NY2d 471, 474 [1999]; Loughlin v Town of N. Hempstead, 84 AD3d 1035 [2011]).
Here, the Town met its burden of establishing that it did not receive prior written notice ofthe alleged defective condition, thereby shifting to the plaintiff the burden of demonstrating that atriable issue of fact existed either in that regard or as to whether one of the Amabileexceptions applied (see Groninger vVillage of Mamaroneck, 17 NY3d 125 [2011]; Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Rochford v City of Yonkers, 12 AD3d433 [2004]). However, the Supreme Court correctly determined that, in opposition, theplaintiff raised a triable issue of fact as to whether the [*2]Towncreated the defective condition within the meaning of the exception, based on the affirmativenegligence of the Town which immediately resulted in the existence of the dangerous condition(see Yarborough v City of New York, 10 NY3d at 728; Tumminia v Cruz Constr. Corp., 41AD3d 585, 586 [2007]). The plaintiff raised a triable issue of fact as to whether the Town,during its cleaning of the subject storm drain on three occasions prior to the accident,immediately bent and damaged the subject storm drain grate based on the manner in which theTown removed the grate and put it back into place.
The Town's remaining contention is without merit.
Accordingly, the Supreme Court properly denied the Town's motion for summary judgmentdismissing the complaint. Mastro, J.P., Florio, Belen and Chambers, JJ., concur.