| Keating v Town of Oyster Bay |
| 2013 NY Slip Op 07157 [111 AD3d 604] |
| November 6, 2013 |
| Appellate Division, Second Department |
| Kevin Keating, Appellant, v Town of Oyster Bay,Respondent, et al., Defendant. |
—[*1] Burns, Russo, Tamigi & Reardon, LLP, Garden City, N.Y. (John T. Pieret ofcounsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limitedby his brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.),entered January 12, 2012, as granted that branch of the motion of the defendant Town ofOyster Bay which was for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
At approximately 6:00 p.m. on January 30, 2009, the plaintiff allegedly was injuredwhen he slipped on ice and fell to the ground in a parking lot owned by the defendantTown of Oyster Bay. The plaintiff testified at his deposition that he attempted to crossover an eight-inch high snow mound or ridge on top of a garden area separating awalkway from the subject parking lot, as there was no opening in the mound or ridgeallowing for pedestrian traffic into the parking lot. The plaintiff alleged that the moundor ridge existed as a result of the Town's snow removal operations. The plaintiff furthertestified at his deposition that after he fell, he realized that what he had thought was aclear area on the parking lot side of the mound had been "jagged ice . . .black ice . . . you could see right through it so it looked just like concrete tome."
The Town moved, inter alia, for summary judgment dismissing the complaint insofaras asserted against it, asserting lack of prior written notice and that it did not create adangerous condition through an affirmative act of negligence.
"A municipality that has adopted a prior written notice law cannot be held liable for adefect within the scope of the law absent the requisite written notice, unless an exceptionto the requirement applies" (Masotto v Village of Lindenhurst, 100 AD3d 718, 718[2012] [internal quotation marks omitted]; see Poirier v City of Schenectady, 85NY2d 310 [1995]; Hanover Ins.Co. v Town of Pawling, 94 AD3d 1055, 1056 [2012]; Forbes v City of New York, 85AD3d 1106, 1107 [2011]; Abano v Suffolk County Community Coll., 66 AD3d 719,719 [2009]; Katsoudas v City ofNew York, 29 AD3d 740, 741 [2006]). Here, the Town has enacted such a priorwritten notice law (see Code of Town of Oyster Bay § 160-1)."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" (Masotto v Village ofLindenhurst, 100 AD3d at 719 [internal quotation marks omitted]; see Miller v Village of E.Hampton, 98 AD3d 1007, 1008 [2012]).
The Town established its prima facie entitlement to judgment as a matter of law bydemonstrating that it did not receive prior written notice of a snow mound or icycondition as required by Code of Town of Oyster Bay § 160-1, and that it did notcreate a dangerous condition through an affirmative act of negligence (see Lichtman v Village of KiryasJoel, 90 AD3d 1001, 1001-1002 [2011]; Forman v City of White Plains, 5 AD3d 434 [2004];Davis v City of New York, 270 App Div 1047 [1946]). In opposition, theplaintiff failed to raise a triable issue of fact (see Avellino v City of New York, 107 AD3d 836, 837[2013]).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted that branch of the Town's motionwhich was for summary judgment dismissing the complaint insofar as asserted against it.Dillon, J.P., Lott, Austin and Hinds-Radix, JJ., concur. [Prior Case History: 2012NY Slip Op 30129(U).]