| Salierno v City of Mount Vernon |
| 2013 NY Slip Op 04789 [107 AD3d 971] |
| June 26, 2013 |
| Appellate Division, Second Department |
| Florence Salierno, Respondent, v City of MountVernon et al., Appellants. |
—[*1] Calano & Culhane, LLP, White Plains, N.Y. (Thomas A. Culhane of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Westchester County (Walker, J.), entered September 17,2012, which denied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
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, 474[1999]; Carlucci v Village ofScarsdale, 104 AD3d 797 [2013]; Miller v Village of E. Hampton, 98 AD3d 1007, 1008[2012]). "Recognized exceptions to the prior written notice requirement exist where themunicipality created the defect or hazard through an affirmative act of negligence, orwhere a special use confers a special benefit upon it" (Miller v Village of E.Hampton, 98 AD3d at 1008; see Amabile v City of Buffalo, 93 NY2d at474; Braver v Village ofCedarhurst, 94 AD3d 933, 934 [2012]). If one of these recognized exceptionsapplies, the written notice requirement is obviated (see Groninger v Village of Mamaroneck, 17 NY3d 125,127 [2011]).
The defendants demonstrated their prima facie entitlement to judgment as a matter oflaw by establishing that the defendant City of Mount Vernon did not have prior writtennotice of, or create, the defective or dangerous condition that allegedly caused theplaintiff's accident (see Romanov Village of Mamaroneck, 100 AD3d 854 [2012]; Cuebas v City of Yonkers, 97AD3d 779, 780 [2012]). In opposition, the plaintiff raised a triable issue of fact withrespect to whether the City of Mount Vernon affirmatively created the dangerouscondition that caused her accident (see Laracuente v City of New York, 104 AD3d 822[2013]; Anderson v CDFleetwood Assoc., LLC, 82 AD3d 689, 689 [2011]; Danis v Incorporated Vil. of Atl.Beach, 74 AD3d 1273, 1274 [2010]). Accordingly, the Supreme Court properlydenied the defendants' motion for summary judgment dismissing the complaint.
The defendants' remaining contention, that the defect was trivial and therefore notactionable, is raised for the first time on appeal, and thus, is not properly before thisCourt. Rivera, J.P., Skelos, Chambers and Austin, JJ., concur.