GUADAGNO v. CITY OF NIAGARA FALLS (2007)

 Plaintiffs commenced this action seeking damages for injuries allegedly sustained by plaintiff Terri Marie Guadagno when she tripped and fell on an uneven sidewalk that crossed the driveway of the abutting landowner, defendant Marcia Massaro.   Supreme Court properly granted the motion of Massaro and the cross motion of defendant City of Niagara Falls (City) for summary judgment dismissing the complaint.   With respect to Massaro's motion, it is well established that, as an abutting landowner, Massaro is not liable for injuries sustained as the result of a defect in the sidewalk unless the special use doctrine applies, i.e., the sidewalk was constructed in a special manner for her benefit, or unless she affirmatively created the defective condition or negligently constructed or repaired the sidewalk or there is a local ordinance charging her with the duty to maintain and repair the sidewalk and imposing liability for injuries resulting from her failure to do so (see Hausser v. Giunta, 88 N.Y.2d 449, 453, 646 N.Y.S.2d 490, 669 N.E.2d 470;  Montes v. City of Buffalo, 295 A.D.2d 896, 896-897, 744 N.Y.S.2d 601, lv. denied 99 N.Y.2d 504, 754 N.Y.S.2d 203, 784 N.E.2d 76).   Massaro met her initial burden by establishing that those exceptions do not apply to this case, and plaintiffs failed to raise an issue of fact sufficient to defeat the motion (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   We reject plaintiffs' contention that the conduct of Massaro in driving across the portion of the sidewalk that crosses her driveway constitutes a special use of that sidewalk.   As noted, the special use doctrine applies only if the sidewalk was specifically constructed in a special manner for the benefit of the abutting landowner (see Kaufman v. Silver, 90 N.Y.2d 204, 207, 659 N.Y.S.2d 250, 681 N.E.2d 417;  Minott v. City of New York, 230 A.D.2d 719, 720, 645 N.Y.S.2d 879), and that is not the case here.

 With respect to the City's cross motion, the City met its initial burden by establishing as a matter of law that it did not receive prior written notice of the defective condition as required by section 5.14 of the Niagara Falls City Charter, which provides in relevant part that no civil action shall be maintained against the City based on, inter alia, an alleged defective condition of a sidewalk unless prior written notice of that condition was given to the Director of Operations and Technical Services.   The City further established that the two exceptions to the prior written notice requirement do not apply, i.e., the City did not create the alleged defective condition and there is no special use of the sidewalk that confers a benefit on the City (see Oswald v. City of Niagara Falls, 13 A.D.3d 1155, 1156-1157, 787 N.Y.S.2d 757;  see generally Amabile v. City of Buffalo, 93 N.Y.2d 471, 475-476, 693 N.Y.S.2d 77, 715 N.E.2d 104).   Although plaintiffs presented evidence establishing that a City employee may have had actual knowledge of the defective condition, it is well settled that actual or constructive notice does not override the prior written notice requirement (see Amabile, 93 N.Y.2d at 475-476, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Oswald, 13 A.D.3d at 1157, 787 N.Y.S.2d 757;  Zimmerman v. City of Niagara Falls, 112 A.D.2d 17, 490 N.Y.S.2d 380).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: