| Conner v City of New York |
| 2013 NY Slip Op 01371 [104 AD3d 637] |
| March 6, 2013 |
| Appellate Division, Second Department |
| Timothy Conner, Appellant, v City of New York,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo andSusan Paulson of counsel; Daniel Fishman on the brief), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Velasquez, J.), entered January 31, 2012,which granted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff, a former Sergeant with the New York City Police Department,commenced this action to recover damages for injuries he allegedly incurred while onduty and responding to an emergency call. The plaintiff alleged in his notice of claim andcomplaint that he fell as a result of tripping in a pothole, adjacent to a manhole, in theroadway in front of certain premises in Brooklyn. The plaintiff alleged that his injurieswere a direct result of the negligence and carelessness of the City of New York inallowing or permitting the dangerous condition to exist. Following the completion ofdiscovery, the City moved for summary judgment dismissing the complaint on theground that it lacked prior written of the dangerous condition, as required underAdministrative Code of the City of New York § 7-201 (c). The Supreme Courtgranted the motion, concluding that the City met its prima facie burden of demonstratingthat there had been no compliance with the prior written notice law, and that the plaintiff,in opposition, failed to present any evidence to the contrary or that the City made specialuse of the location of the allegedly dangerous roadway condition.
Where a municipality has enacted a prior written notice law, it may not be subjectedto liability for injuries arising from a dangerous roadway condition unless it has receivedprior written notice of the dangerous condition, or an exception to the prior written noticerequirement applies (see Amabile v City of Buffalo, 93 NY2d 471 [1999]; Miller v Village of E.Hampton, 98 AD3d 1007 [2012]; De La Reguera v City of Mount Vernon, 74 AD3d 1127[2010]; Schleif v City of NewYork, 60 AD3d 926 [2009]). The only recognized exceptions to the statutoryprior written notice requirement involve situations in which the municipality created thedefect or hazard through an affirmative act of negligence, or where a special use confersa benefit upon the municipality (see Amabile v City of Buffalo, 93 NY2d at 474;Poirier v City of Schenectady, 85 NY2d 310, 314-315 [1995]; Loughlin v Town of N.Hempstead, 84 AD3d 1035 [2011]; De La Reguera v City of Mount Vernon, 74 AD3d 1127[2010]).[*2]
Contrary to the plaintiff's contention, the Cityestablished its prima facie entitlement to judgment as a matter of law by presentingevidence that it had not received prior written notice of the condition that allegedlycaused the plaintiff's injuries (see Groninger v Village of Mamaroneck, 17 NY3d 125,129 [2011]; Boggi v City ofWhite Plains, 97 AD3d 773 [2012]; Pennamen v Town of Babylon, 86 AD3d 599 [2011]). Inopposition, the plaintiff failed to raise a triable issue of fact as to whether the Cityactually was provided with timely prior written notice or whether the special useexception was applicable (seeOboler v City of New York, 8 NY3d 888, 890 [2007]; Melendez v City of New York,72 AD3d 913 [2010]; Schleif v City of New York, 60 AD3d at 928; ITTHartford Ins. Co. v Village of Ossining, 257 AD2d 606 [1999]), and the plaintiff didnot address the affirmative act exception to the prior written notice law.
The plaintiff's remaining contentions either are without merit or improperly raised forthe first time on appeal.
Accordingly, the Supreme Court properly granted the City's motion for summaryjudgment dismissing the complaint. Mastro, J.P., Angiolillo, Chambers and Cohen, JJ.,concur.