| Hanover Ins. Co. v Town of Pawling |
| 2012 NY Slip Op 03142 [94 AD3d 1055] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Hanover Insurance Company, as Subrogee of Sherwood ModularConcepts, Respondent, v Town of Pawling, Appellant. |
—[*1] Methfessel & Werbel, New York, N.Y. (Fredric P. Gallin of counsel), forrespondent.
In a subrogation action to recover damages for injury to property, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Dutchess County (Brands,J.), dated June 16, 2010, as denied its cross motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's cross motion for summary judgment dismissing the complaint is granted.
"A municipality that has adopted a 'prior written notice law' cannot be held liable for a defectwithin the scope of the law absent the requisite written notice, unless an exception to therequirement applies" (Forbes v City ofNew York, 85 AD3d 1106, 1107 [2011]; see Poirier v City of Schenectady, 85NY2d 310 [1995]; Abano v SuffolkCounty Community Coll., 66 AD3d 719 [2009]; Katsoudas v City of New York, 29 AD3d 740, 741 [2006]). Wheresuch a municipality establishes that it lacked prior written notice of an alleged defect, the burdenshifts to the plaintiff to demonstrate the applicability of one of the two recognized exceptions tothe prior written notice requirement (seeYarborough v City of New York, 10 NY3d 726, 728 [2008]; Kiszenik v Town of Huntington, 70AD3d 1007, 1007-1008 [2010]). "The only two recognized exceptions to a prior writtennotice requirement are the municipality's affirmative creation of a defect or where the defect iscreated by the municipality's special use of the property" (Forbes v City of New York, 85AD3d at 1107; see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Filaski-Fitzgerald v Town ofHuntington, 18 AD3d 603, 604 [2005]). "Moreover, the affirmative negligenceexception . . . [is] limited to work by the [municipality] that immediately results inthe existence of a dangerous condition" (Forbes v City of New York, 85 AD3d at 1107[internal quotation marks omitted]; see Yarborough v City of New York, 10 NY3d at728; Oboler v City of New York, 8NY3d 888, 889 [2007]; Bielecki vCity of New York, 14 AD3d 301, 301 [2005]).
The defendant, the Town of Pawling, has adopted an applicable prior written notice law. TheCode of the Town of Pawling provides, in pertinent part, that[*2]"[n]o civil action shall be maintained against the Town of Pawling . . . for damagesor injuries to person or property sustained by reason of any street, highway, bridge or culvertowned by the Town of Pawling . . . being defective, out of repair, unsafe, dangerousor obstructed, unless actual prior written notice of such defective, unsafe, dangerous orobstructed condition of such street, highway, bridge or culvert . . . was actuallygiven to the Town Clerk of the Town of Pawling or the Superintendent of Highways of the Townof Pawling and there was a failure or neglect within a reasonable time after the giving of suchnotice to repair or remove the defect, danger or obstruction complained of" (Code of Town ofPawling § 139-1).
Here, the defendant established its prima facie entitlement to judgment as a matter of law bydemonstrating that it did not receive prior written notice of the defect alleged by the plaintiff asrequired by the Code of the Town of Pawling. Contrary to the Supreme Court's determination, inopposition, the plaintiff failed to raise a triable issue of fact as to whether either of the tworecognized exceptions to the prior written notice requirement applied. Accordingly, the SupremeCourt erred in denying the defendant's cross motion for summary judgment dismissing thecomplaint.
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Rivera, J.P., Florio, Dickerson and Lott, JJ., concur.