| Levy v City of New York |
| 2012 NY Slip Op 03147 [94 AD3d 1060] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Michael Levy, Respondent, v City of New York et al.,Appellants, et al., Defendant. |
—[*1] Bamundo, Zwal & Schermerhorn, LLP, New York, N.Y. (Ben Bartolotta of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants City of New York, theNew York City Department of Water Supply, and the New York City Department ofTransportation appeal, as limited by their brief, from so much of an order of the Supreme Court,Queens County (Kerrigan, J.), entered August 3, 2010, as denied that branch of their motionwhich was for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the motion of the defendants City of New York, the New York City Department ofWater Supply, and the New York City Department of Transportation which was for summaryjudgment dismissing the complaint insofar as asserted against them is granted.
The plaintiff allegedly was injured when he tripped and fell as a result of a defect in theroadway adjacent to a hydrant gate box owned by the defendant City of New York. The hydrantgate box controlled the flow of water to a nearby fire hydrant. The Supreme Court, inter alia,denied that branch of the motion of the City, the defendant New York City Department of WaterSupply, and the defendant New York City Department of Transportation (hereinafter collectivelythe City defendants) which was for summary judgment dismissing the complaint insofar asasserted against them. The City defendants appeal, and we reverse the order insofar as appealedfrom.
Where a municipality has enacted a prior written notice statute, it may not be subjected toliability for injuries arising from a defective roadway unless either it has received prior writtennotice of the defective condition or an exception to the prior written notice requirement applies(see De La Reguera v City of MountVernon, 74 AD3d 1127 [2010]; Griesbeck v County of Suffolk, 44 AD3d 618, 619 [2007]; Lopez v G&J Rudolph Inc., 20 AD3d511, 512 [2005]). The only two recognized exceptions to the prior written noticerequirement are where the municipality created the defect through an affirmative act ofnegligence, or where the defect resulted from a special use of the property by the municipalitywhich conferred a special benefit on it (see Amabile v City of Buffalo, 93 NY2d 471, 474[1999]; Filaski-Fitzgerald v Town ofHuntington, 18 AD3d 603, 604 [2005]). Moreover, "the [*2]affirmative negligence exception 'is limited to work by the City thatimmediately results in the existence of a dangerous condition' " (Yarborough v City of New York, 10NY3d 726, 728 [2008], quoting Oboler v City of New York, 8 NY3d 888, 889 [2007]).
Here, the City defendants established their prima facie entitlement to judgment as a matter oflaw by providing evidence that they did not have prior written notice of the alleged defectivecondition as required by the Administrative Code of the City of New York (seeAdministrative Code of City of NY § 7-201 [c] [2]; Forbes v City of New York, 85 AD3d 1106, 1107 [2011]; Marshall v City of New York, 52AD3d 586 [2008]). In opposition, the plaintiff failed to raise a triable issue of fact as towhether either of the recognized exceptions to the prior written notice requirement applies(see Forbes v City of New York, 85 AD3d at 1107).
Accordingly, the Supreme Court should have granted that branch of the City defendants'motion which was for summary judgment dismissing the complaint insofar as asserted againstthem. Balkin, J.P., Leventhal, Belen and Roman, JJ., concur.