K. Moore (Andrea G. Sawyers, Melville, NY [Dominic P.
Zafonte], of counsel), for appellant.
David Carlucci, Scarsdale, NY, for respondent.
M. LEVENTHAL, J.P. L. PRISCILLA HALL SANDRA L. SGROI COLLEEN
D. DUFFY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendant appeals from an order of the Supreme Court,
Westchester County (Wood, J.), dated March 22, 2016, which
denied its motion for summary judgment dismissing the
that the order is reversed, on the law, with costs, and the
defendant's motion for summary judgment dismissing the
complaint is granted.
plaintiff allegedly tripped on an unlevel slab of bluestone
sidewalk in the Village of Scarsdale (hereinafter the
defendant), fracturing her wrist. In her notice of claim,
verified complaint, and verified bill of particulars, the
plaintiff alleged that the defendant affirmatively created
the defective condition by virtue of its design, selection,
and installation of the sidewalk and that it negligently
maintained and repaired the sidewalk. The defendant moved for
summary judgment dismissing the complaint, arguing that it
had not received prior written notice of the alleged defect
as required by Village of Scarsdale Local Law § 209-1
and that it did not create the alleged defect. The Supreme
Court denied the defendant's motion. The defendant
as here, a municipality has enacted a prior written notice
law, it may not be subjected to liability for injuries caused
by a dangerous condition which comes within the ambit of the
law unless it has received prior written notice of the
alleged defect or dangerous condition, or an exception to the
prior written notice requirement applies" (Palka v
Village of Ossining, 120 A.D.3d 641, 641; see
Amabile v City of Buffalo, 93 N.Y.2d 471, 474). There
are two "recognized exceptions to the rule-that the
municipality affirmatively created the defect through an act
of negligence or that a special use resulted in a special
benefit to the locality" (Yarborough v City of New
York, 10 N.Y.3d 726, 728). The affirmative act
exception, the only exception at issue here, " is
limited to work by the [municipality] that immediately
results in the existence of a dangerous condition'"
(id. at 728, quoting Oboler v City of New
York, 8 N.Y.3d 888, 889).
prima facie showing which a defendant must make on a motion
for summary judgment is governed by the allegations of
liability made by the plaintiff in the pleadings"
(Foster v Herbert Slepoy Corp., 76 A.D.3d 210, 214).
The plaintiff alleged, in her pleadings, that the defendant
negligently maintained and repaired the sidewalk and
affirmatively created the defective condition that caused the
accident. Thus, to establish its prima facie entitlement to
judgment as a matter of law, the defendant was required to
demonstrate, prima facie, both that it did not have prior
written notice of the alleged defect, and that it did not
create the alleged defect (see McManus v Klein, 136
A.D.3d 700; Lima v Village of Garden City, 131
A.D.3d 947, 948; Steins v Incorporated Vil. of Garden
City, 127 A.D.3d 957, 958; Braver v Village of
Cedarhurst, 94 A.D.3d 933, 934).
defendant made a prima facie showing of entitlement to
judgment as a matter of law by providing the affidavit of the
Village Clerk, which indicated that she conducted a records
search and found no prior written notice of a defective
condition at the location alleged by the plaintiff (see
Pagano v Town of Smithtown, 74 A.D.3d 1304, 1305).
Furthermore, the defendant established, prima facie, that it
did not create the allegedly defective condition through an
affirmative act of negligence (see Lima v Village of
Garden City, 131 A.D.3d at 948).
opposition, the plaintiff failed to raise a triable issue of
fact. Contrary to the plaintiff's contention, evidence
suggesting that the defendant actually knew of the alleged
defect did not satisfy the requirement in Village of
Scarsdale Local Law § 209-1 that prior written notice of
the alleged defect be given to the Village Clerk (see
Velho v Village of Sleepy Hollow, 119 A.D.3d 551, 552;
Chirco v City of Long Beach, 106 A.D.3d 941, 942;
McCarthy v City of White Plains, 54 A.D.3d 828,
829-830). Moreover, the plaintiff failed to raise a triable
issue of fact as to the affirmative negligence exception, as
she did not identify any evidence demonstrating that the
allegedly defective condition arose immediately upon
installation (see Yarborough v City of New York, 10
N.Y.3d at 728; Spanos v Town of Clarkstown, 81
A.D.3d 711, 713). The plaintiff's evidence, which
includes an expert affidavit and statements by Village
officials, at most established that environmental effects
created the alleged defect over time, which is not sufficient
to establish the defendant's liability (see Gagnon v
City of Saratoga Springs, 51 A.D.3d 1096, 1097-1098;
see also San Marco v Village/Town of Mount Kisco, 16
N.Y.3d 111, 117-118).
the Supreme Court should have granted the defendant's
motion for ...