| Braver v Village of Cedarhurst |
| 2012 NY Slip Op 02828 [94 AD3d 933] |
| April 17, 2012 |
| Appellate Division, Second Department |
| Shulamit Braver et al., Appellants, v Village of Cedarhurst,Respondent. |
—[*1] Morris, Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Feinman, J.), dated July 20, 2011, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
On the afternoon of June 17, 2010, the plaintiff Shulamit Braver allegedly was injured whenshe tripped and fell on a sidewalk in a parking lot owned and operated by the defendant Villageof Cedarhurst. The injured plaintiff allegedly tripped because of a height differential between thesidewalk and the curb. The injured plaintiff and her husband, suing derivatively, subsequentlycommenced this action against the Village alleging that it had negligently "caused, created,constructed, permitted and/or allowed the sidewalk" at the accident site to "become and remain ina dangerous, uneven, depressed and unsafe condition." In their bill of particulars, the plaintiffsthereafter alleged that the Village had created the dangerous sidewalk condition through anumber of specified design and construction defects. The Village moved for summary judgmentdismissing the complaint upon the ground that it had not received prior written notice of thesidewalk defect as required by its prior written notice law (see Code of Village ofCedarhurst, art I, § 224-1), and the Supreme Court granted its motion.
Where, as here, a municipality has enacted a prior written notice statute, it may not besubjected to liability for injuries caused by an improperly maintained street or sidewalk unless ithas received written notice of the defect, or an exception to the written notice requirementapplies (id.; see Amabile v City of Buffalo, 93 NY2d 471 [1999]; Pennamen v Town of Babylon, 86AD3d 599 [2011]; De La Reguera vCity of Mount Vernon, 74 AD3d 1127 [2010]). Exceptions to the prior written noticerequirement have been recognized where the municipality created the defect or hazard through anaffirmative act of negligence, or where a special use confers a special benefit upon it (seeAmabile v City of Buffalo, 93 NY2d at 474; see also Yarborough v City of New York, 10 NY3d 726, 728[2008]; Pennamen v Town of Babylon, 86 AD3d at 599). If one of these recognizedexceptions applies, the [*2]written notice requirement is obviated(see Groninger v Village ofMamaroneck, 17 NY3d 125, 127 [2011]).
Although the Village established that it did not receive prior written notice of the allegedlydangerous condition, it failed to meet its burden of demonstrating its prima facie entitlement tojudgment as a matter of law. "[T]he prima facie showing which a defendant must make on amotion for summary judgment is governed by the allegations of liability made by the plaintiff inthe pleadings" (Foster v Herbert SlepoyCorp., 76 AD3d 210, 214 [2010]), and, here, the plaintiffs alleged in their bill ofparticulars that the Village affirmatively created the dangerous condition which caused theaccident through various specified acts of negligence in the design and construction of thesidewalk and parking lot (see Gagnon vCity of Saratoga Springs, 14 AD3d 845 [2005]). Under these circumstances, the Villagewas required to eliminate all triable issues of fact as to whether it affirmatively created theallegedly dangerous condition through negligent design and construction in order to sustain itsprima facie burden (cf. Rubistello vBartolini Landscaping, Inc., 87 AD3d 1003 [2011]; Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1045 [2010]; Koi Hou Chan v Yeung, 66 AD3d642 [2009]). Since the Village failed to do so, its motion for summary judgment should havebeen denied without regard to the sufficiency of the plaintiffs' opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Hill v Fence Man, Inc., 78 AD3d1002, 1004-1005 [2010]). Skelos, J.P., Dickerson, Eng and Leventhal, JJ., concur.