SZUBA v. CITY OF BUFFALO (2021)

MEMORANDUM AND ORDER

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

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by David Szuba (plaintiff) when he allegedly slipped and fell on an ice-filled pothole on a street in defendant, City of Buffalo. Defendant moved for summary judgment dismissing the amended complaint, and Supreme Court granted defendant's motion. We affirm.

“Where, as here, a municipality has enacted a prior written notice statute, it may not be subject to liability for personal injuries caused by a defective street ․ condition unless it has received prior written notice of the defect, or an exception to the written notice requirement applies” (Zielinski v. City of Mount Vernon, 115 A.D.3d 946, 947, 982 N.Y.S.2d 531 [2d Dept. 2014]; see Hawley v. Town of Ovid, 108 A.D.3d 1034, 1034-1035, 969 N.Y.S.2d 641 [4th Dept. 2013]). Here, defendant “met its initial burden by establishing that it did not receive the requisite written notice of the allegedly defective [street] condition as required by section 21-2 of the [Charter of the City of Buffalo (City Charter)]” (Davison v. City of Buffalo, 96 A.D.3d 1516, 1518, 947 N.Y.S.2d 702 [4th Dept. 2012]). Defendant submitted the affidavit of its City Clerk, who stated that the City Clerk's office had conducted a comprehensive search of the database in which such complaints are entered, and no complaints regarding a defective condition in or on the subject street were found (see Scafidi v. Town of Islip, 34 A.D.3d 669, 669, 824 N.Y.S.2d 410 [2d Dept. 2006]). Thus, the burden shifted to plaintiffs to raise a triable issue of fact whether prior written notice was given (see Scovazzo v. Town of Tonawanda, 83 A.D.3d 1600, 1601, 921 N.Y.S.2d 591 [4th Dept. 2011]) or “to demonstrate [the existence of a triable issue of fact as to] the applicability of one of [the] 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, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008]; see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 [2011]; Horst v. City of Syracuse, 191 A.D.3d 1297, 1297-1300, 141 N.Y.S.3d 205 [4th Dept. 2021]).

We conclude that plaintiffs failed to meet that burden. Although plaintiffs submitted evidence establishing that plaintiff had called defendant's 311 call center several months prior to the accident to report the poor condition of the subject street and to ask that potholes in the street be paved, that evidence does not raise a triable issue of fact whether prior written notice was given inasmuch as section 21-2 of the City Charter requires that such notice be provided to the City Clerk (see Gorman v. Town of Huntington, 12 N.Y.3d 275, 279-280, 879 N.Y.S.2d 379, 907 N.E.2d 292 [2009]) and, in any event, it is well settled that verbal or telephonic communications to a municipal body, even if reduced to writing, do not satisfy a prior written notice requirement (see id. at 280, 879 N.Y.S.2d 379, 907 N.E.2d 292; Hernandez v. City of Syracuse, 164 A.D.3d 1609, 1609, 85 N.Y.S.3d 293 [4th Dept. 2018]; Rile v. City of Syracuse, 56 A.D.3d 1270, 1271, 867 N.Y.S.2d 823 [4th Dept. 2008]).

Furthermore, plaintiffs failed to demonstrate the existence of a triable issue of fact as to the applicability of either of the two recognized exceptions to the prior written notice rule (see Gorman, 12 N.Y.3d at 279, 879 N.Y.S.2d 379, 907 N.E.2d 292; Tracy v. City of Buffalo, 158 A.D.3d 1094, 1094, 68 N.Y.S.3d 618 [4th Dept. 2018]). To the extent that plaintiffs contend that they demonstrated the existence of a triable issue of fact whether defendant should be estopped from relying on its prior written notice provision under “a third exception to excuse lack of prior written notice” (Gorman, 12 N.Y.3d at 280, 879 N.Y.S.2d 379, 907 N.E.2d 292), we reject that contention. “Even assuming that estoppel could serve as a third exception to excuse lack of prior written notice,” we conclude that plaintiffs failed to raise a triable issue of fact whether plaintiff justifiably relied on any representations by defendant (id.). Contrary to plaintiffs’ contention, their submissions do not establish that plaintiff was directed by an employee of defendant to make his complaint about potholes to the wrong person or office (cf. Schutz-Prepscius v. Incorporated Vil. of Port Jefferson, 51 A.D.3d 657, 658, 858 N.Y.S.2d 235 [2d Dept. 2008]; see also Gorman v. Town of Huntington, 47 A.D.3d 30, 38, 844 N.Y.S.2d 421 [2d Dept. 2007], revd 12 N.Y.3d 275, 879 N.Y.S.2d 379, 907 N.E.2d 292 [2009]), and the record does not support the conclusory allegation of plaintiffs that defendant's 311 call center was “advertised” as the means to report dangerous conditions to defendant (see Groninger, 17 N.Y.3d at 129-130, 927 N.Y.S.2d 304, 950 N.E.2d 908; 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 [1980]).