| Gonzalez v Town of Hempstead |
| 2015 NY Slip Op 00495 [124 AD3d 719] |
| January 21, 2015 |
| Appellate Division, Second Department |
[*1]
| Orlando Gonzalez et al., Respondents, v Townof Hempstead, Appellant, et al., Defendants. |
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (RandyS. Nissan of counsel), for appellant.
Hirsch, Britt & Mosé, Garden City, N.Y. (Susan Fagen Britt of counsel),for respondents.
In an action to recover damages for personal injuries, etc., the defendant Town ofHempstead appeals from so much of an order of the Supreme Court, Nassau County(Bruno, J.), entered April 19, 2013, as denied its cross motion for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the cross motion of the defendant Town of Hempstead for summary judgmentdismissing the complaint and all cross claims insofar as asserted against it is granted.
On February 1, 2010, the plaintiff Orlando Gonzalez (hereinafter the injuredplaintiff) allegedly sustained injuries when he tripped and fell on bolts protruding from asidewalk in Franklin Square in the Town of Hempstead. The bolts allegedly were left inthe ground after a bench that had been anchored to the sidewalk by those bolts wasdamaged during an automobile accident on December 31, 2009. The injured plaintiff,and his wife suing derivatively, commenced this action, inter alia, to recover damages forpersonal injuries against the Town, among others. Thereafter, the Town cross-moved forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst it. In an order entered April 19, 2013, the Supreme Court, inter alia, denied theTown's cross motion. The Town appeals from that portion of the order.
"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" (Barnes v Incorporated Vil. of Port Jefferson, 120 AD3d528, 529 [2014]; see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999])."The only two recognized exceptions to a prior written notice requirement are themunicipality's affirmative creation of a defect or where the defect is created by themunicipality's special use of the property" (Forbes v City of New York, 85 AD3d 1106, 1107 [2011])."Actual notice of the alleged hazardous condition does not override the statutoryrequirement of prior written notice of a sidewalk defect" (Velho v Village of SleepyHollow, 119 AD3d 551, 552 [2014]).
The Town established its prima facie entitlement to judgment as a matter of law by[*2]submitting, inter alia, the affidavit of the HighwayGeneral Crew Chief of the Town's Department of Highways, who averred that his searchof the Town's records revealed no prior written notice of any hazardous condition on thesidewalk where the accident occurred (see Johnson v Braun, 120 AD3d 765 [2014]; Velho vVillage of Sleepy Hollow, 119 AD3d at 552; Spanos v Town of Clarkstown, 81 AD3d 711, 713 [2011]).The plaintiffs failed to raise a triable issue of fact in opposition, while the Town'scodefendants submitted no opposition. The plaintiffs' contention that the Townaffirmatively created a dangerous condition was without support in the record, andspeculative in any event (seeSmith v City of Mount Vernon, 101 AD3d 847, 848 [2012]; Weinberg v City of New York,96 AD3d 736 [2012]; McCarthy v City of White Plains, 54 AD3d 828, 830[2008]; Katsoudas v City ofNew York, 29 AD3d 740, 741 [2006]).
The parties' remaining contentions either are without merit or need not be reached inlight of our determination.
Accordingly, the Supreme Court erred in denying the Town's cross motion forsummary judgment dismissing the complaint and all cross claims insofar as assertedagainst it. Eng, P.J., Mastro, Roman and Miller, JJ., concur.