MURINE v. CITY OF UTICA (2007)

 Plaintiff commenced this action to recover damages for injuries she sustained when she allegedly “tripped in a crater” in a paved driveway in a park owned by defendant, City of Utica (City).   The accident occurred when plaintiff was leaving the park following a City-sponsored Fourth of July fireworks display.   Supreme Court properly granted that part of the City's motion seeking dismissal of the complaint insofar as it alleges that plaintiff's injuries were the result of the dangerous condition of the driveway.   Plaintiff failed to allege compliance with the City's prior written notice requirement (see City of Utica Charter § 1.016;  Second Class Cities Law § 244), and the City established that it did not receive prior written notice of the allegedly dangerous condition of the driveway (see Brooks v. Village of Horseheads, 14 A.D.3d 756, 757, 788 N.Y.S.2d 437). Contrary to plaintiff's contention, that requirement applies to a driveway located within a City-owned park (see Morzello v. Village of Briarcliff Manor, 260 A.D.2d 611, 688 N.Y.S.2d 679;  Kadlecik v. Village of Endicott, 174 A.D.2d 923, 924, 571 N.Y.S.2d 619;  see also Bielecki v. City of New York, 14 A.D.3d 301, 788 N.Y.S.2d 67;  Englehardt v. Town of Hempstead, 141 A.D.2d 601, 602, 529 N.Y.S.2d 523, lv. denied 72 N.Y.2d 808, 533 N.Y.S.2d 57, 529 N.E.2d 425).   The prior written notice requirement does not apply, however, to the allegation of plaintiff that her injuries resulted from the City's negligent failure to provide proper illumination in the area of the driveway following the fireworks display (see Cracas v. Zisko, 204 A.D.2d 382, 383, 612 N.Y.S.2d 55;  see also Gagnon v. City of Saratoga Springs, 14 A.D.3d 845, 846-847, 788 N.Y.S.2d 249).   The court therefore erred in granting the City's motion in its entirety, and we modify the order accordingly.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion in part and reinstatingthe complaint insofar as it alleges that defendant was negligent in failing to provide proper illumination and as modified the order is affirmed without costs.

MEMORANDUM: