Nichelle A. Johnson, Corporation Counsel, Mount Vernon, N.Y. (Brian G. Johnson of counsel), for appellant.
Mallilo & Grossman, Flushing, N.Y. (Ann Jen of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SANDRA L. SGROI, ROBERT J. MILLER, JJ
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Walker, J.), entered March 29, 2012, which denied its motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
The plaintiff commenced this action to recover damages for personal injuries which he allegedly sustained as a result of a slip and fall on an icy sidewalk or curb located in the defendant, the City of Mount Vernon. The City moved for summary judgment dismissing the complaint arguing, inter alia, that the plaintiff could not maintain this action since the City had not received prior written notice of the alleged defect in accordance with section 265 of the Charter of the City of Mount Vernon. The Supreme Court denied the motion, finding that the City failed to make a prima facie showing of entitlement to judgment as a matter of law.
"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, 1056; Abano v Suffolk County Community Coll., 66 A.D.3d 719, 719). "Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it" (Miller v Village of E. Hampton, 98 A.D.3d 1007, 1008).
Here, the City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the allegedly icy condition upon which the plaintiff slipped and fell, as required by section 265 of the Charter of the City of Mount Vernon (see Shannon v Village of Rockville Ctr., 39 A.D.3d 528; Gianna v Town of Islip, 230 A.D.2d 824, 825). In opposition thereto, the plaintiff failed to raise a triable issue of fact. Indeed, the plaintiff's opposition consisted merely of speculation that the City created the alleged condition by improper snow removal (see Wohlars v Town of Islip, 71 A.D.3d 1007, 1009; Trainor v Dayton Seaside Assoc., 282 A.D.2d 524). Nor was there any proof that the City made special use of the area.
The Supreme Court's reliance on the case of San Marco v Village/Town of Mount Kisco (16 N.Y.3d 111) as support for denial of the City's motion for summary judgment, was misplaced. Unlike the situation presented in San Marco, here, there was neither evidence that the City was responsible for the removal of snow at the subject location, nor evidence that it undertook any such efforts (see Masotto v Village of Lindenhurst, 100 A.D.3d 718, 719).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court should have granted the City's motion for summary judgment ...