| Chirco v City of Long Beach |
| 2013 NY Slip Op 03627 [106 AD3d 941] |
| May 22, 2013 |
| Appellate Division, Second Department |
| Dino Alberto Chirco et al., Appellants, v City ofLong Beach, Respondent. |
—[*1] Corey E. Klein, Corporation Counsel, Long Beach, N.Y. (Charles M. Geiger ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiffs appeal from anorder of the Supreme Court, Nassau County (Sher, J.), entered November 19, 2010,which granted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On May 11, 2008, Roberta Chirco was walking on the boardwalk in the City of LongBeach when her foot allegedly became caught in a gap between the wooden slats and shefell, sustaining injuries. Chirco thereafter commenced this action against the City torecover damages for personal injuries. The City moved for summary judgmentdismissing the complaint on the ground that it did not receive prior written notice of thealleged defect as required by section 256A (1) of the Charter of the City of Long Beach(hereinafter section 256A [1]). The Supreme Court granted the motion, and Chircoappealed. After perfecting the appeal, Chirco died, and she has been substituted on thisappeal by the executors of her estate (hereinafter the appellants).
Pursuant to section 256A (1), no civil action may be maintained against the City torecover damages for personal injuries caused by a dangerous condition on the subjectboardwalk unless prior written notice of the condition has been filed in the office of theCommissioner of Public Works of the City. Prior written notice statutes are strictlyconstrued (see Gorman v Townof Huntington, 12 NY3d 275, 279 [2009]; Poirier v City ofSchenectady, 85 NY2d 310, 313 [1995]), and only two exceptions are recognized,"namely, where the locality created the defect or hazard through an affirmative act ofnegligence and where a special use confers a special benefit upon the locality"(Amabile v City of Buffalo, 93 NY2d 471, 474, [1999] [citation and internalquotation marks omitted]; seeAbano v Suffolk County Community Coll., 66 AD3d 719 [2009]).
Here, the complaint did not allege one of the recognized exceptions. Thus, the Cityestablished its prima facie entitlement to judgment as a matter of law by proffering theaffidavit of its Commissioner of Public Works, in which he asserted that he had searchedthe City's prior written notice record book and had found no records indicating that theCity had received prior written notice of the alleged defective condition at the location ofthe boardwalk identified by Chirco (see Magee v Town of Brookhaven, 95 AD3d 1179, 1180[2012]; Politis v Town ofIslip, 82 AD3d 1191 [2011]; McCarthy v City of White Plains, 54 AD3d 828, 829[2008]; cf. Carlucci v Village of Scarsdale, 104 AD3d [*2]797 [2013]).
In opposition, Chirco failed to raise a triable issue of fact as to whether the Cityreceived prior written notice of the alleged dangerous condition, or whether either of thetwo exceptions to the prior written notice rule applied (see Yarborough v City of NewYork, 10 NY3d 726, 728 [2008]; Amabile v City of Buffalo, 93 NY2dat 474; Oliveri v Village ofGreenport, 93 AD3d 773, 774 [2012]). Contrary to the appellants' contention,the evidence regarding six previous notices of claim failed to raise a triable issue as towhether the City had prior written notice of the alleged dangerous condition whichcaused Chirco to fall, because those notices of claim involved conditions on differentportions of the boardwalk some distance from the alleged dangerous condition whichcaused Chirco to fall (seeArcabascio v City of New York, 91 AD3d 684, 684-685 [2012]; Farrago v Great Atl. & Pac. TeaCo., Inc., 17 AD3d 631, 633 [2005]). The records of the City's PoliceDepartment and Beach Maintenance Department did not raise a triable issue, sincesection 256A (1) requires the filing of written notice with the City's Commissioner ofPublic Works (see Gorman v Town of Huntington, 12 NY3d at 279; Kiszenik v Town ofHuntington, 70 AD3d 1007, 1008 [2010]). Moreover, the appellants' contentionthat the City had actual or constructive notice of a recurring condition is without merit.Where, as here, a municipality has enacted a prior written notice statute, "[c]onstructivenotice of a condition is insufficient to satisfy the requirement of prior written notice"(Magee v Town of Brookhaven, 95 AD3d at 1180; see Amabile v City ofBuffalo, 93 NY2d at 475-476), nor does "actual notice . . . obviate theneed to comply with the prior written notice requirement" (Granderson v City of WhitePlains, 29 AD3d 739, 740 [2006]).
Accordingly, the Supreme Court properly determined that the City established itsprima facie entitlement to judgment as a matter of law dismissing the complaint, and thatChirco failed to raise a triable issue sufficient to defeat the motion (see generallyAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Angiolillo, J.P., Chambers,Hall and Roman, JJ., concur. [Prior Case History: 2010 NY Slip Op 33405(U).]