TRINIDAD v. CITY OF MOUNT VERNON (2008)

In an action to recover damages for personal injuries, etc., the defendant City of Mount Vernon appeals from an order of the Supreme Court, Westchester County (Nicolai, J.), entered February 27, 2007, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant City of Mount Vernon for summary judgment dismissing the complaint insofar as asserted against it is granted.

 A municipality that has enacted a prior written notice law cannot be held liable for a defect within the meaning of the law 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;  Barry v. Niagara Frontier Tr. Sys., 35 N.Y.2d 629, 633–634, 364 N.Y.S.2d 823, 324 N.E.2d 312).  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 Delgado v. County of Suffolk, 40 A.D.3d 575, 835 N.Y.S.2d 379;  Lopez v. G & J Rudolph Inc., 20 A.D.3d 511, 512, 799 N.Y.S.2d 254).  “[T]he affirmative negligence exception ․ [is] limited to work by the City that immediately results in the existence of a dangerous condition” (Bielecki v. City of New York, 14 A.D.3d 301, 301, 788 N.Y.S.2d 67;  see Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270;  Daniels v. City of New York, 29 A.D.3d 514, 515, 814 N.Y.S.2d 258).

 Here, the defendant City of Mount Vernon established its entitlement to judgment as a matter of law by submitting evidence establishing that it had no prior written notice of the defective condition in the sidewalk which allegedly caused the injured plaintiff's fall (see Smith v. Town of Brookhaven, 45 A.D.3d 567, 846 N.Y.S.2d 203;  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).  In opposition, the plaintiffs failed to submit evidence sufficient to raise a triable issue of fact as to whether the City created the alleged defect through an affirmative act of negligence.  While there was some evidence that the City performed water service work at or near the accident site more than seven years before the accident, there was legally insufficient proof that the defective condition existed immediately upon the City's completion of the repair work, or that the deterioration of the sidewalk was caused by the City's repair, instead of developing over a period of time (see Daniels v. City of New York, 29 A.D.3d at 515, 814 N.Y.S.2d 258;   Bielecki v. City of New York, 14 A.D.3d at 301, 788 N.Y.S.2d 67).  Accordingly, the Supreme Court should have granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.