| Barnes v Incorporated Vil. of Port Jefferson |
| 2014 NY Slip Op 05760 [120 AD3d 528] |
| August 13, 2014 |
| Appellate Division, Second Department |
[*1]
| Robert Barnes, Appellant, v IncorporatedVillage of Port Jefferson, Respondent, et al., Defendants. |
Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), forappellant.
Siler & Ingber, LLP, Mineola, N.Y. (Maria Nanis and Jeffrey B. Siler 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, Suffolk County (Pitts, J.),dated June 11, 2013, as granted that branch of the motion of the defendant IncorporatedVillage of Port Jefferson which was for summary judgment dismissing the complaintinsofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff alleges that on December 29, 2010, at approximately 9:30 p.m., heslipped and fell on a mound of snow in a municipal parking lot located at 99A MainStreet, in the defendant Incorporated Village of Port Jefferson. The plaintiff testified athis deposition that he and his wife left a local sports bar through a back door, which ledto a parking lot. The plaintiff observed that snow had been cleared and plowed to thesides of the lot, and there was a mound of snow running perpendicular to the route heand his wife wanted to walk. The plaintiff recalled there was no visible path or spot inthat perpendicular line of snow that permitted him to pass into the parking lot. At hisdeposition, he described the snow mound as being eight feet across and 3
As a result of this incident, the plaintiff commenced this action against, amongothers, the Village, which owned and maintained the subject parking lot, alleging that themound existed as a result of the Village's snow removal operations. The Village moved,inter alia, for summary judgment dismissing the complaint insofar as asserted against it,contending, among other things, lack of prior written notice. The Supreme Court, interalia, granted that branch of the motion.
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 (see Amabile v City of Buffalo, 93 NY2d 471, 474[1999]; Keating v Town ofOyster Bay, 111 AD3d 604 [2013]; Masotto v Village of Lindenhurst, 100 AD3d 718, 718[2012]; Albano v SuffolkCounty, 99 AD3d 741 [2012]). Recognized exceptions to the prior writtennotice requirement exist where [*2]the municipalitycreated the defect or hazard through an affirmative act of negligence, or where a specialuse confers a special benefit upon it (see Keating v Town of Oyster Bay, 111AD3d at 604; Masotto v Village of Lindenhurst, 100 AD3d at 718; Albano vSuffolk County, 99 AD3d at 742).
Contrary to the plaintiff's assertions on appeal, the Village established its prima facieentitlement to judgment as a matter of law by demonstrating that it did not receive priorwritten notice of the snow mound, and that it did not create a dangerous conditionthrough an affirmative act of negligence (see Keating v Town of Oyster Bay, 111AD3d at 604; Forman v City ofWhite Plains, 5 AD3d 434 [2004]; Davis v City of New York, 270 AppDiv 1047 [1946], affd 296 NY 869 [1947]). The plaintiff did not allege that thesubject condition was created by the Village's special use, and thus, the Village was notrequired to address this exception (see Perez v City of New York, 116 AD3d 1019, 1020[2014]). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted that branch of the Village's motionwhich was for summary judgment dismissing the complaint insofar as asserted against it.Skelos, J.P., Austin, Sgroi and LaSalle, JJ., concur.