| Wiley v Incorporated Vil. of Garden City |
| 2012 NY Slip Op 00363 [91 AD3d 764] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Regina Wiley, Respondent, v Incorporated Village ofGarden City, Defendant/Third-Party Plaintiff-Appellant-Respondent. Scatt Materials, Inc.,Third-Party Defendant-Respondent-Appellant, et al., Third-PartyDefendants. |
—[*1] Conway, Farrell, Curtin & Kelly, P.C., New York, N.Y. (Jonathan T. Uejio of counsel), forthird-party defendant-respondent-appellant. Joseph C. Andruzzi, Plainview, N.Y., for plaintiff-respondent.
In an action to recover damages for personal injuries, the defendant/third-party plaintiffappeals from so much of an order of the Supreme Court, Nassau County (Parga, J.), enteredNovember 29, 2010, as denied its motion for summary judgment dismissing the complaint, andthe third-party defendant Scatt Materials, Inc., cross-appeals from so much of the same order asdenied its cross motion for summary judgment dismissing the third-party complaint insofar asasserted against it.
Ordered that the order is reversed, on the law, with one bill of costs to thedefendant/third-party plaintiff payable by the plaintiff, and one bill of costs to the third-partydefendant Scatt Materials, Inc., payable by the defendant/third-party plaintiff, the motion of thedefendant/third-party plaintiff for summary judgment dismissing the complaint is granted, andthe cross motion of the third-party defendant Scatt Materials, Inc., for summary judgmentdismissing the third-party complaint insofar as asserted against it is granted.
The plaintiff allegedly was injured when she stumbled and fell in a parking lot owned by thedefendant, the Incorporated Village of Garden City (hereinafter the Village), as a result ofstepping into a pothole. The plaintiff commenced this action against the Village, and the Villagecommenced a third-party action against, among others, Scatt Materials, Inc. (hereinafter ScattMaterials), the corporation that allegedly installed the asphalt in the subject parking lot in 1984.The Village moved for summary judgment dismissing the complaint and Scatt Materialscross-moved for summary judgment dismissing the third-party complaint insofar as assertedagainst it.
On its motion for summary judgment dismissing the complaint, the Village made a primafacie showing of entitlement to judgment as a matter of law by providing evidence that it [*2]lacked prior written notice of the allegedly dangerous condition, asrequired by Garden City Village Code § 132-2 (see Jason v Town of N. Hempstead, 61 AD3d 936 [2009]; Smith v Village of Rockville Ctr., 57AD3d 649, 650 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact. Theplaintiff's contention that the Village failed to maintain indexed records of notices received, inviolation of Village Law § 4-402 (g), is unavailing. When presented with such a failure,the burden shifts to the municipality to show that it made a diligent and good-faith search of itsinternal records (see Caramanica v City of New Rochelle, 268 AD2d 496 [2000];Mollahan v Village of Port Washington N., 153 AD2d 881, 885 [1989]). Here, themunicipality made a diligent effort and good-faith search of its records and found no priorwritten notice.
Regarding the plaintiff's contention as to the applicability of the affirmative negligenceexception to the statutory rule requiring prior written notice, she failed to provide any evidencetending to show that repairs performed by the Village immediately resulted in a pothole or anyother surface defect in the area in question (Yarborough v City of New York, 10 NY3d 726, 728 [2008]; see Oboler v City of New York, 8NY3d 888, 889 [2007]; Richards vIncorporated Vil. of Rockville Ctr., 80 AD3d 594, 594 [2011]; cf. San Marco v Village/Town of MountKisco, 16 NY3d 111 [2010]). Accordingly, the Supreme Court should have granted theVillage's motion for summary judgment dismissing the complaint.
Moreover, the Supreme Court should have granted the cross motion of Scatt Materials forsummary judgment dismissing the third-party complaint insofar as asserted against it. ScattMaterials made a prima facie showing of entitlement to judgment as a matter of law, and theVillage failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]). Dickerson, J.P., Hall, Cohen and Miller, JJ., concur.