| Miller v Village of E. Hampton |
| 2012 NY Slip Op 06195 [98 AD3d 1007] |
| September 19, 2012 |
| Appellate Division, Second Department |
| Joan Miller, Respondent, v Village of East Hampton,Appellant. |
—[*1] Batt & Messinetti, P.C., Shirley, N.Y. (John E. Messinetti, Jr., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Suffolk County (Asher, J.), dated August 23, 2011, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when she tripped and fell as a result of an alleged defectin a sidewalk in the Village of East Hampton. In her complaint and bill of particulars, theplaintiff alleged, among other things, that the defendant Village created the dangerous conditionthat caused her to trip and fall by its negligent design, installation, and construction of thesidewalk, the lighting, and the surrounding landscaping. The defendant moved for summaryjudgment dismissing the complaint on the ground that it had not received prior written notice ofthe alleged sidewalk defect. In support of the motion, the defendant submitted affidavits from itsClerk/Administrator and its Superintendent of Public Works, both of whom averred that theyconducted a record search and found no record that the defendant had received written notice ofthe subject sidewalk defect, or any oral complaints relating to the sidewalk, lighting, orlandscaping in the area. The Supreme Court denied the defendant's motion, concluding that itfailed to meet its prima facie burden. The defendant appeals. We affirm.
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 (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Braver v Village of Cedarhurst, 94AD3d 933 [2012]; Pennamen vTown of Babylon, 86 AD3d 599 [2011]). Recognized exceptions to the prior writtennotice requirement exist 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]; Braver v Village of [*2]Cedarhurst, 94 AD3d 933 [2012]). When one of theserecognized exceptions applies, the written notice requirement is obviated (see Groninger v Village ofMamaroneck, 17 NY3d 125, 127 [2011]).
In the instant matter, the defendant established that it did not receive prior written notice ofthe alleged dangerous condition. Nonetheless, it failed to meet its burden of demonstrating itsprima facie entitlement to judgment as a matter of law. "[T]he prima facie showing which adefendant must make on a motion for summary judgment is governed by the allegations ofliability made by the plaintiff in the pleadings" (Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2010]; see Braver v Village of Cedarhurst, 94AD3d 933 [2012]). Here, the plaintiff alleged in her notice of claim, complaint, and bill ofparticulars that the defendant affirmatively created the dangerous condition which caused theaccident through various specified acts of negligence in the design and construction of thesidewalk, the lighting, and the landscaping (see Braver v Village of Cedarhurst, 94 AD3d 933 [2012]). Underthese circumstances, the defendant was required to eliminate all triable issues of fact as towhether it affirmatively created the alleged dangerous condition through negligent design andconstruction to sustain its prima facie burden (see id.; cf. Rubistello v Bartolini Landscaping, Inc., 87 AD3d 1003 [2011];Wall v Flushing Hosp. Med. Ctr.,78 AD3d 1043, 1045 [2010]). Since the defendant failed to do so, the Supreme Courtproperly denied its motion for summary judgment without regard to the sufficiency of theplaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]; Hill v Fence Man, Inc.,78 AD3d 1002, 1004-1005 [2010]).
The defendant's remaining contentions need not be reached in light of our determination.Rivera, J.P., Hall, Lott and Cohen, JJ., concur.