PERRINGTON v. CITY OF MOUNT VERNON (2007)

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered October 3, 2005, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 A municipality that has enacted a prior written notice law is excused from liability absent proof of prior written notice or an exception thereto (see Poirier v. City of Schenectady, 85 N.Y.2d 310, 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, in opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether there was a defect and, if so, whether the defendant affirmatively created the defect by either failing to place blacktop around the subject metal plate or negligently securing such metal plate with blacktop (see Padula v. City of Long Beach, 20 A.D.3d 555, 556, 799 N.Y.S.2d 557;  Maggio v. City of New York, 305 A.D.2d 554, 555, 759 N.Y.S.2d 395;  Kupfer v. Village of Briarcliff Manor, 288 A.D.2d 269, 270, 732 N.Y.S.2d 885;  Mayer v. Town of Brookhaven, 266 A.D.2d 360, 361, 698 N.Y.S.2d 312).   Moreover, a triable issue of fact exists as to whether the condition was open and obvious at the time of the accident (cf. Dominitz v. Food Emporium, 271 A.D.2d 640, 706 N.Y.S.2d 475).