KATSOUDAS v. CITY OF NEW YORK (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Elliot, J.), dated September 14, 2004, as granted the cross motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 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 or sidewalk condition absent proof of prior written notice or an exception thereto (see Poirier v. City of Schenectady, 85 N.Y.2d 310, 313, 624 N.Y.S.2d 555, 648 N.E.2d 1318).   The Court of Appeals has recognized two exceptions to this rule, “namely, where the locality created the defect or hazard through an affirmative act of negligence” and “where a ‘special use’ confers a special benefit upon the locality” (Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  see Lopez v. G & J Rudolph Inc., 20 A.D.3d 511, 512, 799 N.Y.S.2d 254;  Filaski-Fitzgerald v. Town of Huntington, 18 A.D.3d 603, 604, 795 N.Y.S.2d 614;  Gold v. County of Westchester, 15 A.D.3d 439, 440, 790 N.Y.S.2d 675).

 Here, the defendant City of New York established its entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the alleged defect (see Mahler v. Incorporated Vil. of Port Jefferson, 18 A.D.3d 450, 451, 794 N.Y.S.2d 435;  Gold v. County of Westchester, supra;  Corey v. Town of Huntington, 9 A.D.3d 345, 346, 780 N.Y.S.2d 156;  Acheson v. City of Mount Vernon, 6 A.D.3d 468, 469, 774 N.Y.S.2d 432).   In opposition, the plaintiff failed to submit evidence sufficient to raise a triable issue of fact as to whether the City affirmatively created the alleged defect (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The testimony of the defendant Joseph Montalbano, Jr., to the effect that the depressions in the roadway appeared at some unspecified time after some Department of Environmental Protection employees came by the area and perhaps performed some unknown task near the accident site, was too speculative to raise a triable issue of fact (see Palkovic v. Town of Brookhaven, 166 A.D.2d 566, 567, 560 N.Y.S.2d 850).