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Magee v. Town of Brookhaven

Supreme Court of New York, Second Department

May 23, 2012

Jaimie Magee, plaintiff-appellant,
v.
Town of Brookhaven, respondent, Homelines Holding Corp., et al., defendants- appellants, et al., defendant. Index No. 439/06

Rosenberg & Gluck, LLP, Holtsville, N.Y. (Michael V. Buffa of counsel), for plaintiff-appellant.

O'Connor Redd, LLP, White Plains, N.Y. (Amy Lynn Fenno of counsel), for defendants-appellants.

Goldberg Segalla, LLP, Garden City, N.Y. (Brian W. McElhenny of counsel), for respondent.

RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, JEFFREY A. COHEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Homelines Holding Corp., Salvatore Pane, Peter Pisillo, and Suffolk County Property Management Corp. of Mastic, Inc., appeal from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated April 21, 2011, which granted the motion of the defendant Town of Brookhaven for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against it, and the plaintiff separately appeals, as limited by her brief, from so much of the same order as granted that branch of the motion of the defendant Town of Brookhaven which was for summary judgment dismissing the amended complaint insofar as asserted against it.

ORDERED that the appeal by the defendants Homelines Holding Corp., Salvatore Pane, Peter Pisillo, and Suffolk County Property Management Corp. of Mastic, Inc., from so much of the order as granted that branch of the motion of the defendant Town of Brookhaven which was for summary judgment dismissing the amended complaint insofar as asserted against it is dismissed, as they are not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 A.D.3d 144, 156-157); and it is further,

ORDERED that the order is affirmed insofar as appealed from by the plaintiff and insofar as reviewed on the appeal by the defendants Homelines Holding Corp., Salvatore Pane, Peter Pisillo, and Suffolk County Property Management Corp. of Mastic, Inc.; and it is further,

ORDERED that one bill of costs is awarded to the defendant Town of Brookhaven payable by the plaintiff-appellant and the defendants-appellants, appearing separately and filing separate briefs.

The plaintiff commenced this action against, among others, the Town of Brookhaven, to recover damages for injuries she sustained in an automobile accident allegedly caused by ice on a roadway owned and maintained by the Town. The Town moved for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against it on the ground that it did not have prior written notice of the allegedly dangerous condition as required by the Town of Brookhaven Code § 84-1.

The Town made a prima facie showing of its entitlement to judgment as a matter of law by submitting affidavits of its employees demonstrating that it did not receive the requisite prior written notice of the alleged icy condition (see Town of Brookhaven Code § 84-1[A]; Amabile v City of Buffalo, 93 N.Y.2d 471');">93 N.Y.2d 471, 474; Wohlars v Town of Islip, 71 A.D.3d 1007');">71 A.D.3d 1007, 1009; Politis v Town of Islip, 82 A.D.3d 1191, 1192). In opposition, the appellants failed to raise a triable issue of fact. Constructive notice of a condition is insufficient to satisfy the requirement of prior written notice (see Town of Brookhaven Code § 84-1[B]; Amabile v City of Buffalo, 93 N.Y.2d at 475; Rosenblum v City of New York, 89 A.D.3d 439; Tucker v City of New York, 84 A.D.3d 640, 645; Kiszenik v Town of Huntington, 70 A.D.3d 1007, 1008; Groninger v Village of Mamaroneck, 67 A.D.3d 733, affd 17 N.Y.3d 125; McCarthy v City of White Plains, 54 A.D.3d 828, 830).

Since the Town established its prima facie entitlement to judgment as a matter of law, the burden shifted to the appellants to raise a triable issue of fact as to the applicability of one of the two exceptions to the prior written notice requirement, namely, the Town's affirmative creation of the defect or its special use of the property (see Yarborough v City of New York, 10 N.Y.3d 726, 728; Oboler v City of New York, 8 N.Y.3d 888, 889; Amabile v City of Buffalo, 93 N.Y.2d at 474). Contrary to the appellants' contentions, they failed to raise a triable issue of fact as to whether the allegedly icy condition was created by the Town's affirmative negligence (see Wohlars v Town of Islip, 71 A.D.3d at 1009; Denio v City of New Rochelle, 71 A.D.3d 717, 718; Flederbach v Faymen, 65 A.D.3d 1010, 1011; Ravina v Incorporated Town of Greenburgh, 6 A.D.3d 688, 689; Frullo v Incorporated Vil. of Rockville Ctr., 274 A.D.2d 499; Alfano v City of New Rochelle, 259 A.D.2d 645; Zwielich v Incorporated Vil. of Freeport, 208 A.D.2d 920, 921), and there was no claim of special use.

Accordingly, the Supreme Court properly granted the Town's motion for summary judgment dismissing the complaint and all cross ...


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