| Carlucci v Village of Scarsdale |
| 2013 NY Slip Op 01798 [104 AD3d 797] |
| March 20, 2013 |
| Appellate Division, Second Department |
| Noreen S. Carlucci, Appellant, v Village ofScarsdale, Respondent. |
—[*1] Thomas Moore (Andrea G. Sawyers, Melville, N.Y. [Dominic P. Zafonte], ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Westchester County (O. Bellantoni, J.), entered June 28,2012, which granted the defendant's motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is denied.
The plaintiff allegedly sustained injuries when she tripped and fell as a result of analleged defect in a sidewalk in the Village of Scarsdale. In her notice of claim, verifiedcomplaint, and verified bill of particulars, the plaintiff alleged, inter alia, that thedefendant Village created the dangerous condition that caused her to fall by negligentlydesigning and constructing the sidewalk, and that she tripped because of a heightdifferential between the raised and sloping bluestone sidewalk flags and the depressedcobblestones. The defendant moved for summary judgment dismissing the complaint onthe ground that it had not received prior written notice of the alleged defect. In support ofthe motion, the defendant submitted affidavits from its Village Clerk and itsSuperintendent of Public Works, both of whom averred that they conducted a recordsearch and found no record that the defendant had received written notice of the subjectsidewalk defect. The Supreme Court granted the defendant's motion.
Where, as here, a municipality has enacted a prior written notice statute, it may notbe subjected to liability for injuries caused by an improperly maintained street orsidewalk unless it has received written notice of the defect, or an exception to the writtennotice requirement applies (see Amabile v City of Buffalo, 93 NY2d 471 [1999];Miller v Village of E.Hampton, 98 AD3d 1007 [2012]; Braver v Village of Cedarhurst, 94 AD3d 933 [2012]; Pennamen v Town of Babylon,86 AD3d 599 [2011]). "Recognized exceptions to the prior written noticerequirement 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"(Miller v Village of E. Hampton, 98 AD3d at 1008; see Amabile v City ofBuffalo, 93 NY2d at 474; Braver v Village of Cedarhurst, 94 AD3d 933 [2012]).When one of these recognized [*2]exceptions applies, thewritten notice requirement is obviated (see Groninger v Village of Mamaroneck, 17 NY3d 125,127 [2011]).
Here, the defendant established that it did not receive prior written notice of thealleged dangerous condition. Nonetheless, it failed to demonstrate its prima facieentitlement 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 allegationsof liability made by the plaintiff in the pleadings" (Foster v Herbert Slepoy Corp., 76 AD3d 210, 214 [2010];see Miller v Village of E.Hampton, 98 AD3d 1007 [2012]; Braver v Village of Cedarhurst, 94 AD3d 933 [2012]).Here, the plaintiff's pleadings alleged that the defendant affirmatively created thedangerous condition that caused the accident through negligence in the design andconstruction of the sidewalk (see Miller v Village of E. Hampton, 98 AD3d 1007 [2012];Braver v Village ofCedarhurst, 94 AD3d 933 [2012]). Under these circumstances, the defendantwas required to eliminate all triable issues of fact as to whether it affirmatively createdthe alleged dangerous condition through negligent design and construction to sustain itsprima facie burden (see Miller vVillage of E. Hampton, 98 AD3d 1007 [2012]; Braver v Village ofCedarhurst, 94 AD3d 933 [2012]). The defendant failed to do so, and therefore,its motion for summary judgment should have been denied without regard to thesufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]; Miller v Village of E. Hampton, 98 AD3d 1007 [2012]; Hill v Fence Man, Inc., 78AD3d 1002, 1004-1005 [2010]). Dillon, J.P., Angiolillo, Dickerson and Cohen, JJ.,concur.