QUINN v. CITY OF NEW ROCHELLE (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Nancy Quinn Koba, J.), dated August 9, 2023.  The order granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross-motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly slipped and fell on an exterior staircase of a building owned by the defendant, City of New Rochelle.  The plaintiff subsequently commenced this action against the defendant, inter alia, to recover damages for personal injuries, alleging that he was injured as a result of a defective condition.  The defendant moved for summary judgment dismissing the complaint, contending, among other things, that it did not have prior written notice of the alleged defective condition of the staircase.  The plaintiff cross-moved for summary judgment on the issue of liability, contending, inter alia, that the defendant created the defect.  In an order dated August 9, 2023, the Supreme Court granted the defendant's motion and denied the plaintiff's cross-motion.  The plaintiff appeals.

“When a municipality has adopted a prior written notice law, the municipality ‘cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies’ ” (Schaum v. City of New York, 216 A.D.3d 691, 691, 187 N.Y.S.3d 108, quoting Sanon v. MTA Long Is. R.R., 203 A.D.3d 773, 775, 164 N.Y.S.3d 175;  see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).  “Where the municipality makes a prima facie showing that it lacked prior written notice of the alleged defect, the burden shifts to the plaintiff to demonstrate the applicability of one of 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” (Reynolds v. City of Poughkeepsie, 230 A.D.3d 1260, 1261, 218 N.Y.S.3d 452 [internal quotation marks omitted];  see Goodman v. City of New York, 230 A.D.3d 1115, 1116–1117, 219 N.Y.S.3d 340).  The affirmative negligence exception is limited to work done by a municipality “ ‘that immediately results in the existence of a dangerous condition’ ” (Wilson v. Incorporated Vil. of Freeport, 212 A.D.3d 870, 871, 182 N.Y.S.3d 225 [emphasis omitted], quoting Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270).  “Even if a municipality performs a negligent repair, where the defect develops over time with environmental wear and tear, the affirmative negligence exception is inapplicable” (id. [internal quotation marks omitted];  see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873).

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the alleged defect (see City of New Rochelle Charter § 127A;  Grady v. Town of Hempstead, 223 A.D.3d 885, 886, 204 N.Y.S.3d 542;  Sanchez v. County of Nassau, 222 A.D.3d 685, 687, 201 N.Y.S.3d 450).  In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff failed to show that any work that the defendant performed on the staircase approximately 11 years prior to the accident affirmatively created the alleged defect (see Goodman v. City of New York, 230 A.D.3d at 1117–1118, 219 N.Y.S.3d 340;  Wilson v. Incorporated Vil. of Freeport, 212 A.D.3d at 872, 182 N.Y.S.3d 225).

The plaintiff's remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross-motion for summary judgment on the issue of liability.

GENOVESI, J.P., MILLER, DOWLING and MCCORMACK, JJ., concur.