TRACY v. CITY OF BUFFALO (2018)

Supreme Court, Appellate Division, Fourth Department, New York.

Karen A. TRACY, Plaintiff–Respondent, v. CITY OF BUFFALO, Defendant–Appellant.

162 Decided: February 02, 2018

PRESENT: CENTRA, J.P., CARNI, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (CHRISTOPHER R. POOLE OF COUNSEL), FOR DEFENDANT–APPELLANT. CHIACCHIA & FLEMING, LLP, HAMBURG (DANIEL J. CHIACCHIA OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

Plaintiff commenced this action to recover damages that she allegedly sustained in a motor vehicle accident caused by potholes. We agree with defendant that Supreme Court erred in denying its motion for summary judgment dismissing the complaint. Defendant established that it lacked prior written notice of a defective or unsafe condition in the road, and plaintiff failed to meet its burden of demonstrating that an exception to the general rule is applicable (see Malek v. Village of Depew, 156 A.D.3d 1412, 65 N.Y.S.3d 843 [4th Dept. 2017] ). Contrary to plaintiff's contention, it is well established that “verbal or telephonic communication to a municipal body that is reduced to writing [does not] satisfy a prior written notice requirement” (Gorman v. Town of Huntington, 12 N.Y.3d 275, 280, 879 N.Y.S.2d 379, 907 N.E.2d 292 [2009] ).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum:

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