| Avellino v City of New York |
| 2013 NY Slip Op 04567 [107 AD3d 836] |
| June 19, 2013 |
| Appellate Division, Second Department |
| Andrew Avellino, Respondent, v City of NewYork, Appellant. |
—[*1] Arniotes & Calakos, LLP, Brooklyn, N.Y. (George G. Coffinas and DemetraArniotes Calakos of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Richmond County (Aliotta, J.), dated December 2, 2011,which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is granted.
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, 474 [1999];Miller v Village of E.Hampton, 98 AD3d 1007, 1008 [2012]; De La Reguera v City of Mount Vernon, 74 AD3d 1127,1127 [2010]; Schleif v City ofNew York, 60 AD3d 926, 927-928 [2009]). The only recognized exceptions tothe statutory prior written notice requirement involve situations in which the municipalitycreated the defect or hazard through an affirmative act of negligence, or where a specialuse confers a benefit upon the municipality (see Amabile v City of Buffalo, 93NY2d at 474; Poirier v City of Schenectady, 85 NY2d 310, 314-315 [1995]).
Contrary to the plaintiff's contention, the defendant, the City of New York,established its prima facie entitlement to judgment as a matter of law by presentingevidence that it did not receive prior written notice of the condition that allegedly causedthe plaintiff's injuries (seeGroninger v Village of Mamaroneck, 17 NY3d 125, 129 [2011]; cf. Bruni v City of New York,2 NY3d 319 [2004]). In opposition, the plaintiff failed to raise a triable issue of factas to whether the City actually was provided with timely prior written notice or whetherthe affirmative act exception was applicable. Furthermore, the plaintiff did not addressthe special use exception to the prior written notice law (see Conner v City of NewYork, 104 AD3d 637 [2013]).
Accordingly, the Supreme Court erred in denying the City's motion for summaryjudgment dismissing the complaint. Mastro, J.P., Dillon, Dickerson and Austin, JJ.,concur. [Prior Case History: 33 Misc 3d 1233(A), 2011 NY Slip Op 52233(U).]