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Beiner v. Village of Scarsdale

Supreme Court of New York, Second Department

April 5, 2017

Fatin Beiner, respondent,
v.
Village of Scarsdale, appellant. Index No. 65855/14

          Thomas K. Moore (Andrea G. Sawyers, Melville, NY [Dominic P. Zafonte], of counsel), for appellant.

          Don David Carlucci, Scarsdale, NY, for respondent.

          JOHN M. LEVENTHAL, J.P. L. PRISCILLA HALL SANDRA L. SGROI COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         In an 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 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 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 appeals.

         "Where, 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).

         "[T]he 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).

         The 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).

         In 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).

         Accordingly, the Supreme Court should have granted the defendant's motion for ...


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