| Knapp v Town of Hempstead |
| 2015 NY Slip Op 05646 [130 AD3d 579] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| Sandra Knapp, Appellant, v Town ofHempstead, Respondent. |
Borchert & LaSpina, P.C., Whitestone, N.Y. (Gary E. Rosenberg and GregoryM. LaSpina of counsel), for appellant.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Brandveen, J.), dated June 16, 2014, whichdenied her motion pursuant to CPLR 3124 to compel further discovery and granted thedefendant's cross motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, without costs or disbursements, theplaintiff's motion pursuant to CPLR 3124 to compel further discovery is granted, and thedefendant's cross motion for summary judgment dismissing the complaint is denied aspremature, without prejudice to renew following the completion of discovery.
On October 11, 2010, the plaintiff allegedly was injured when she fell in a parkinglot at the Bellmore Long Island Railroad Station located in the Town of Hempstead. InNovember 2011, the plaintiff commenced this action against the Town alleging, interalia, that it was negligent in its maintenance of the subject parking lot. In January 2012,the Town interposed a verified answer. In April 2013, the plaintiff deposed the Town'shighway crew chief. Several months thereafter, the plaintiff moved pursuant to CPLR3124 to compel the defendant to fully respond to her discovery demands and to her firstnotice of supplemental discovery and inspection. In response, the Town cross-moved forsummary judgment dismissing the complaint. The Supreme Court denied the plaintiff'smotion and granted the Town's cross motion. The plaintiff appeals.
"Where, as here, a municipality has enacted a prior written notice law, it may not besubjected to liability for injuries caused by a dangerous condition which comes withinthe ambit of the law unless it has received prior written notice of the alleged defect ordangerous condition, or an exception to the prior written notice requirement applies" (Maya v Town of Hempstead,127 AD3d 1146, 1148 [2015]; see Gonzalez v Town of Hempstead, 124 AD3d 719, 720[2015]). "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" (Barnes v Incorporated Vil. of PortJefferson, 120 AD3d 528, 529 [2014]; see Town of Hempstead Code§ 6-1; Masotto vVillage of Lindenhurst, 100 AD3d 718, 719 [2012]). Both of these exceptionswere alleged in the complaint.
"There shall be full disclosure of all matter material and necessary in the prosecutionor defense of an action, regardless of the burden of proof" (CPLR 3101 [a]). Under thecircumstances [*2]of this case, we find that it waspremature to award summary judgment to the defendant at this stage of the action on theground that there was no prior written notice, or the absence of any recognizedexceptions thereto (see CPLR 3212 [f]; Gruenfeld v City of New Rochelle, 72 AD3d 1025, 1026[2010]). Accordingly, the Supreme Court should have granted the plaintiff's motionpursuant to CPLR 3124 to compel further discovery and denied, as premature, thedefendant's cross motion for summary judgment dismissing the complaint, with leave torenew upon the completion of discovery (see Buto v Town of Smithtown, 121 AD3d 829, 830[2014]). Dillon, J.P., Leventhal, Cohen and Maltese, JJ., concur.