| Lipari v Town of Oyster Bay |
| 2014 NY Slip Op 02755 [116 AD3d 927] |
| April 23, 2014 |
| Appellate Division, Second Department |
| Anthony Lipari, Respondent, v Town of OysterBay, Appellant, andScott Kinhackl et al., Respondents. |
—[*1] Anthony J. LoPresti, Garden City, N.Y., for plaintiff-respondent. Peter E. Finning (McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y.[Patrick M. Murphy], of counsel), for defendants-respondents.
In an action to recover damages for personal injuries, the defendant Town of OysterBay appeals from an order of the Supreme Court, Nassau County (Feinman, J.), enteredDecember 11, 2012, which denied its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it.
Ordered that the order is reversed, on the law, with one bill of costs payable to thedefendant Town of Oyster Bay by the defendants Scott Kinhackl, Michelle Kinhackl, andAntoinette Sarro, and the plaintiff Anthony Lipari, appearing separately and filingseparate briefs, and the motion of the defendant Town of Oyster Bay for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it isgranted.
The plaintiff allegedly sustained personal injuries when he tripped and fell on asidewalk slab raised by tree roots in front of a premises in the defendant Town of OysterBay. At the time of the accident, the defendants Scott Kinhackl, Michelle Kinhackl, andAntoinette Sarro were the owners and residents of the subject premises.
"A municipality that has adopted a 'prior written notice law' cannot be held liable fora defect within the scope of the law absent the requisite written notice, unless anexception to the requirement applies" (Forbes v City of New York, 85 AD3d 1106, 1107 [2011];see Poirier v City of Schenectady, 85 NY2d 310 [1995]; Hanover Ins. Co. v Town ofPawling, 94 AD3d 1055 [2012]; Abano v Suffolk County Community Coll., 66 AD3d 719,719 [2009]; Katsoudas v City ofNew York, 29 AD3d 740, 741 [2006]). Where such a municipality establishesthat it lacked prior written notice of an alleged defect, the burden shifts to the plaintiff todemonstrate the applicability of one of the two recognized exceptions to the prior writtennotice requirement (seeYarborough v City of New York, 10 NY3d 726, 728 [2008]; Hanover Ins.Co. v Town of Pawling, 94 AD3d at 1056; Kiszenik v Town of Huntington, 70 AD3d 1007,1007-1008 [2010]). "The only two recognized exceptions to a prior written noticerequirement are the municipality's affirmative creation of a defect or where the defect iscreated by the municipality's special use of the property" (Forbes v City of NewYork, 85 AD3d at 1107; see Amabile v City of [*2]Buffalo, 93 NY2d 471, 474 [1999]; Hanover Ins.Co. v Town of Pawling, 94 AD3d at 1056; Filaski-Fitzgerald v Town of Huntington, 18 AD3d 603,604 [2005]).
In the complaint, the plaintiff did not allege that he complied with the prior writtennotice provisions contained in Town Law § 65-a (2) or section 160-1 of the Codeof the Town of Oyster Bay. Instead, the plaintiff alleged in his notice of claim, complaint,and bill of particulars that the Town affirmatively created the subject dangerouscondition through various specified acts of negligence. "[T]he prima facie showingwhich a defendant must make on a motion for summary judgment is governed by theallegations of liability made by the plaintiff in the pleadings" (Foster v Herbert Slepoy Corp.,76 AD3d 210, 214 [2010]; see Miller v Village of E. Hampton, 98 AD3d 1007 [2012];Braver v Village ofCedarhurst, 94 AD3d 933 [2012]). The Supreme Court, in denying the Town'smotion, concluded that it failed to meet its prima facie burden since it did notdemonstrate that it did not affirmatively create the condition alleged. However, theSupreme Court erred in so concluding.
The evidence submitted in support of the motion established that the planting of atree or trees adjacent to the sidewalk where the accident occurred, and the alleged failureto maintain the roots of the tree or trees, would at most constitute nonfeasance, notaffirmative negligence (see Monteleone v Incorporated Vil. of Floral Park, 143AD2d 647 [1988], affd 74 NY2d 917 [1989]; Lowenthal v Theodore H.Heidrich Realty Corp., 304 AD2d 725 [2003]; Michela v County of Nassau,176 AD2d 707 [1991]). In opposition, neither the plaintiff nor the defendants ScottKinhackl, Michelle Kinhackl, and Antoinette Sarro raised a triable issue of fact as towhether the Town created the condition alleged through an affirmative act of negligence.
Therefore, the Supreme Court should have granted the Town's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it.Mastro, J.P., Balkin, Sgroi and LaSalle, JJ., concur.