| Moncrieffe v City of White Plains |
| 2014 NY Slip Op 02017 [115 AD3d 915] |
| March 26, 2014 |
| Appellate Division, Second Department |
| Patricia Moncrieffe, Appellant, v City of WhitePlains, Respondent, et al., Defendants. |
—[*1] Joseph A. Maria, P.C. White Plains, N.Y. (Edward A. Frey of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals (1), aslimited by her brief, from so much of an order of the Supreme Court, Westchester County(Giacomo, J.), dated December 16, 2011, as granted the motion of the defendant City ofWhite Plains for summary judgment dismissing the complaint insofar as asserted againstit, and (2) from an order of the same court dated July 30, 2012, which denied her motionfor leave to renew and reargue.
Motion by the defendant City of White Plains to dismiss an appeal from the orderdated July 30, 2012, on the ground, inter alia, that no appeal lies from an order denyingreargument. By decision and order of this Court dated December 11, 2012, the motionwas held in abeyance and referred to the panel of Justices hearing the appeal fordetermination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion and the papers filed in oppositionthereto, and upon the argument of the appeal, it is,
Ordered that the branch of the motion of the defendant City of White Plains whichwas to dismiss the appeal from so much of the order dated July 30, 2012, as denied thatbranch of the plaintiff's motion which was for leave to reargue is granted, the appealfrom that portion of the order is dismissed, and the motion of the defendant City of WhitePlains is otherwise denied; and it is further,
Ordered that the order dated December 16, 2011, is affirmed insofar as appealedfrom; and it is further,
Ordered that the order dated July 30, 2012, is affirmed insofar as reviewed; and [*2]it is further,
Ordered that one bill of costs is awarded to the defendant City of White Plains.
The plaintiff allegedly was injured when she slipped and fell on an icy patch ofroadway in the City of White Plains as she was attempting to walk around asnow-covered median at an intersection. The Supreme Court properly granted the City'smotion for summary judgment dismissing the complaint insofar as asserted against it.
Where, as here, a municipality has adopted a prior written notice law, it cannot beheld liable for a defect within the scope of the law absent the requisite written notice,unless an exception to the requirement applies (see Masotto v Village of Lindenhurst, 100 AD3d 718, 718[2012]; White Plains City Charter § 277). "Recognized exceptions to the priorwritten notice requirement exist where the municipality created the defect or hazardthrough an affirmative act of negligence, or where a special use confers a special benefitupon it" (Masotto v Village of Lindenhurst, 100 AD3d at 719 [internal quotationmarks omitted]; see Keating vTown of Oyster Bay, 111 AD3d 604, 605 [2013]). In her bill of particulars, theplaintiff alleged that the City affirmatively created a dangerous condition by the mannerin which it piled up snow and ice at the location of the accident. Thus, in order toestablish its prima facie entitlement to judgment as a matter of law, the City wasobligated to show not only that it did not receive prior written notice of the dangerouscondition, but that it did not create that condition through an affirmative act ofnegligence (see Romano vVillage of Mamaroneck, 100 AD3d 854, 855 [2012]).
The City 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 in the area in which the plaintiff fell, and that it did not, merely by plowing theroadway, create a dangerous condition through an affirmative act of negligence (seeKeating v Town of Oyster Bay, 111 AD3d at 605; Forman v City of White Plains,5 AD3d 434 [2004]; Davis v City of New York, 270 App Div 1047 [1946],affd 296 NY 869 [1947]; cf. San Marco v Village/Town of Mount Kisco, 16 NY3d 111[2010]). In opposition, the plaintiff failed to raise a triable issue of fact (see Keating vTown of Oyster Bay, 111 AD3d at 605).
Moreover, the purportedly new facts submitted by the plaintiff on that branch of themotion which was for leave to renew would not have changed the prior determination.Therefore, renewal was properly denied (see CPLR 2221 [e]).
The parties' remaining contentions either are without merit or need not be reached inlight of our determination. Rivera, J.P., Balkin, Hinds-Radix and Maltese, JJ., concur.