David Carlucci, Scarsdale, NY, for appellant.
K. Moore (Andrea G. Sawyers, Melville, NY [Dominic P.
Zafonte], of counsel), 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
plaintiff appeals from an order of the Supreme Court,
Westchester County (Zuckerman, J.), dated September 29, 2015,
which granted the defendant's motion for summary judgment
dismissing the complaint.
that the order is affirmed, with costs.
plaintiff allegedly tripped on a sidewalk located on Spencer
Place in the Village of Scarsdale, fell, and injured his
shoulder and back. The plaintiff alleged that he tripped on a
slab of bluestone that protruded up from the surrounding
walkway. In his notice of claim, verified complaint, and
verified bill of particulars, the plaintiff alleged, inter
alia, that the defendant, the Village of Scarsdale,
affirmatively created the defect through its negligent
design, selection, and installation of the bluestone
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 granted the
defendant's motion. The plaintiff appeals.
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 278, 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 his 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).
in support of its motion, the defendant offered an affidavit
from a village official, in which she attested to conducting
a records search on the incident location and finding no
prior written notice of any defect. The defendant therefore
satisfied its prima facie burden as to lack of prior written
notice (see Pagano v Town of Smithtown, 74 A.D.3d
1034, 1035). Furthermore, the defendant offered deposition
testimony from two Village officials indicating that a
committee selected the sidewalk design on consultation with a
professional and experienced landscape architecture firm. One
of those officials testified that the bluestone slabs were
level when the firm subsequently installed the sidewalk. The
other official, himself an engineer, testified that bluestone
was "suitable" for use in the Village's
climate. The defendant thereby demonstrated as part of its
prima facie case that its actions did not " immediately
result[ ] in the existence of a dangerous
condition'" (Yarborough v City of New York,
10 N.Y.3d at 728, quoting Oboler v City of New York,
8 N.Y.3d at 889).
opposition, the plaintiff failed to raise a triable issue of
fact as to prior written notice (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), or as to whether
the defendant affirmatively created the allegedly defective
condition. In this regard, the plaintiff failed to 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 at most established that
environmental effects over time created the alleged defect,
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 properly granted the defendant's motion