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Betz v. Town of Huntington

Supreme Court of New York, Second Department

May 29, 2013

Adrienne Betz, respondent,
v.
Town of Huntington, appellant. Index No. 31918/09

Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Seth M. Weinberg and Robert A. Lifson of counsel), for appellant.

Davis & Ferber, LLP, Islandia, N.Y. (Ian M. Sack of counsel), for respondent.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, SHERI S. ROMAN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated April 27, 2012, as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly tripped and fell over a defect in the defendant Town of Huntington's parking lot and sustained personal injuries. As a result, she commenced this action against the defendant. The defendant moved for summary judgment dismissing the complaint, contending that it did not have prior written notice of the defect. The Supreme Court denied the motion, and we affirm.

"A municipality that has adopted a prior written notice law' cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies" (Forbes v City of New York, 85 A.D.3d 1106, 1107; see Poirier v City of Schenectady, 85 N.Y.2d 310; Hanover Ins. Co. v Town of Pawling, 94 A.D.3d 1055; Abano v Suffolk County Community Coll., 66 A.D.3d 719). "Prior written notice laws are in derogation of the common law and must be strictly construed" (Lagrasta v Town of Oyster Bay, 88 A.D.3d 658; see Gorman v Town of Huntington, 12 N.Y.3d 275, 279). The defendant has adopted a prior written notice law, stating that written notices must submitted to the Town Clerk or the Town Superintendent of Highways (see Code of the Town of Huntington § 174-3; see also Gorman v Town of Huntington, 12 N.Y.3d at 275).

Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law on the ground that it had no prior written notice of the alleged defect in the parking lot (see Pangerl v Town of N. Hempstead, 76 A.D.3d 1001; cf. Smith v City of Mount Vernon, 101 A.D.3d 847; Kiszenik v Town of Huntington, 70 A.D.3d 1007; Levy v Town of Huntington, 54 A.D.3d 732; Wilkie v Town of Huntington, 29 A.D.3d 898). In support of its motion, the defendant submitted the deposition testimony of its deputy director of the Department of General Services and an affidavit from its deputy comptroller. However, neither of those individuals averred that they had specifically searched the records maintained by the Town Clerk and the Town Superintendent of Highways to determine whether the defendant had prior written notice of the defect at issue. Accordingly, the burden never shifted to the plaintiff to raise a triable issue of fact, and this Court need not review the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851).

In light of our determination, the defendant's remaining contentions are academic.

RIVERA, J.P., DICKERSON, LEVENTHAL and ROMAN, JJ., concur.


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