WILLDIGG v. TOWN OF ISLIP (2025)

Upon the following papers read on defendant Town of Islip's motion to dismiss: NYSCEF documents 1 thru 42; it is hereby

ORDERED defendant's motion is granted and plaintiff's complaint is dismissed.

Plaintiff, Lottie Willdigg, commenced this action on July 29, 2022, to recover damages for personal injuries alleged as a result of a trip and fall on August 17, 2021 on a defendant Town of Islip boardwalk. The boardwalk was located at or near Pine Walk approaching the intersection of Bay Walk in the city of Fair Harbor, State of New York. Defendant Town of Islip answered on September 1, 2022. Discovery is complete and a note of issue was filed on July 29, 2024. Defendant Town of Islip now moves to dismiss plaintiff's complaint maintaining that no prior notice of the alleged dangerous or defective condition was provided to the Town. In support of the motion, the Town submits, among other things, the pleadings, plaintiff's 50-h and deposition testimony, the deposition transcript of Peter Kletchka, an affirmation of counsel, affidavits of Noelle M. Martin of the Town of Islip's Department of Public Works, the affidavit of Teresa Bogart an executive assistant of the Town of Islip's Clerk's office, various photographs and a memorandum of law.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, evidence must be viewed in the light most favorable to the nonmoving party (see Chimbo v Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]; Pearson v Dix McBride, LLC, 63 AD3d 895, 883 NYS2d 53 [2d Dept 2009]; Kolivas v Kirchoff, 14 AD3d 493, 787 NYS2d 392 [2d Dept 2005]).

Under New York law, a town has a continuing, nondelegable duty to maintain its public roadways and sidewalks in a reasonably safe condition (see Amabile v City of Buffalo, 93 NY2d 471, 693 NYS2d 77 [1999]; Delgado v County of Suffolk, 40 AD3d 575, 835 NYS2d 379 [2d Dept 2007]; Wilkie v Town of Huntington, 29 AD3d 898, 816 NYS2d 148 [2d Dept 2006]). Nevertheless, where a town has enacted a prior written notice statute, it will not be subjected to liability for injuries caused by a defective or dangerous condition on a sidewalk or roadway unless it has received prior written notice of such condition or an exception to the prior written notice requirement applies (see Amabile v City of Buffalo, supra; Hannibal v Incorporated Vil. of Hempstead, 110 AD3d 960, 961, 973 NYS2d 742 [2d Dept 2013]; Cimino v County of Nassau, 105 AD3d 883, 884, 963 NYS2d 698 [2d Dept 2013]; Braver v Village of Cedarhurst, 94 AD3d 933, 934, 942 NYS2d 178 [2d Dept 2012]). There are only two exceptions to the prior written notice 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 (see Amabile v City of Buffalo, supra; Miller v Village of E. Hampton, 98 AD3d 1007, 1008, 951 NYS2d 171, 173 [2d Dept 2012]; Sollowen v Town of Brookhaven, 43 AD3d 816, 841 NYS2d 351 [2d Dept 2007]). The affirmative negligence exception is limited to work that the municipality performs that immediately results in the existence of a dangerous condition (see Yarborough v City of New York, 10 NY3d 726, 728, 853 NYS2d 261 [2008]).

Pursuant to Town Law § 65-a and Town of Islip Code § 47A-3, as a precondition to commencing a civil action against the Town to recover damages for personal injuries sustained as a result of a defect in Town property, the Town must have been given prior written notice of the defect and failed to repair it within a reasonable time thereafter (see Nixdorf v East Islip School Dist., 276 AD2d 759, 715 NYS2d 432 [2d Dept 2000]). The Code provides, in part, that “[n]o civil action shall be maintained against the Town ․ for damages or injuries ․ sustained by reason of any ․ highway, street, bridge, culvert, sidewalk, crosswalk, highway or street marking, traffic sign, signal or device, tree, tree limb or other property owned or maintained by the Town [ ] being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective [condition] ․ was actually given to the Town Clerk or Commissioner of Public Works” (Code of Town of Islip § 47A-3[A]; see Otto v Miller, 177 AD3d 895, 896, 113 NYS3d 228 [2d Dept 2019]).

According to the affidavit of Noelle Martin, an employee of the Town of Islip's Department of Public Works, submitted in support of the motion by the Town of Islip, thorough searches of Town records revealed no written complaints with regard to the accident site. Teresa Bogart, who is employed by defendant Islip Town Clerk also avers that she performed a search for any records for any prior written complaints concerning the area where plaintiff in this action alleges to have been injured and she found that there were no complaints or prior written notice concerning the incident location.

Accordingly, the Town of Islip has sustained its initial burden on this motion of demonstrating that it did not receive prior notice of the alleged defect. Plaintiff did not oppose the motion. Therefore, defendant's motion for summary judgment dismissing the complaint against it is granted.

Paul M. Hensley, J.