MARIN v. CITY OF NEWBURGH (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant City of Newburgh appeals from an order of the Supreme Court, Orange County (David J. Squirrell, J.), dated May 30, 2024.  The order denied that defendant's motion for summary judgment dismissing the amended 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 Newburgh for summary judgment dismissing the amended complaint insofar as asserted against it is granted.

The plaintiff Gloria Marin (hereinafter the injured plaintiff), and her husband suing derivatively, commenced this action against the defendant City of Newburgh, among others, inter alia, to recover damages for personal injuries that the injured plaintiff allegedly sustained in June 2020, when she tripped and fell on a sunken water valve cap in a roadway located in the City. The City moved for summary judgment dismissing the amended complaint insofar as asserted against it, contending, among other things, that it did not have prior written notice of the allegedly defective condition.  In an order dated May 30, 2024, the Supreme Court denied the City's motion.  The City 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 Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129–130, 927 N.Y.S.2d 304, 950 N.E.2d 908).  The affirmative negligence exception is limited to work done by a municipality “that immediately results in the existence of a dangerous condition” (McConnell v. County of Nassau, 228 A.D.3d 649, 651, 213 N.Y.S.3d 356 [emphasis and internal quotation marks omitted];  see Wilson v. Incorporated Vil. of Freeport, 212 A.D.3d 870, 871, 182 N.Y.S.3d 225).

Here, the City established, prima facie, that it did not receive prior written notice of the alleged defect (see Mitchell v. Village of Monroe, 220 A.D.3d 853, 854, 198 N.Y.S.3d 716;  Morales v. Village of Ossining, 218 A.D.3d 460, 461, 193 N.Y.S.3d 131).  In opposition, the plaintiffs failed to raise a triable issue of fact as to whether an exception to the prior written notice law applied (see Grady v. Town of Hempstead, 223 A.D.3d 885, 886, 204 N.Y.S.3d 542;  Wilson v. Incorporated Vil. of Freeport, 212 A.D.3d at 872, 182 N.Y.S.3d 225).

In light of our determination, we need not reach the City's remaining contention.

Accordingly, the Supreme Court should have granted the City's motion for summary judgment dismissing the amended complaint insofar as asserted against it.

IANNACCI, J.P., FORD, DOWLING and HOM, JJ., concur.