SHARBANI v. Town of North Hempstead, respondent. (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered July 10, 2023.  The order granted the motion of the defendant Town of North Hempstead for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

On November 28, 2020, Yelena Sharbani (hereinafter the injured plaintiff) allegedly was injured when she tripped and fell on an uneven sidewalk in the Town of North Hempstead.  In July 2021, the injured plaintiff, and her husband suing derivatively, commenced this action against, among others, the Town. Thereafter, the Town moved for summary judgment dismissing the complaint insofar as asserted against it, arguing, inter alia, that it lacked prior written notice of the alleged defective condition.  In an order entered July 10, 2023, the Supreme Court granted the Town's motion.  The plaintiffs appeal.

“Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for a defect within the scope of the law unless it has received prior written notice of the defect or an exception to the prior written notice requirement applies” (Sales v. City of New York, 241 A.D.3d 1378, 1378, 241 N.Y.S.3d 757).  “To be entitled to summary judgment, the municipality must first establish that it lacked prior written notice of the alleged defect.  Once that showing is made, 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” (Canaday v. Village of Wappingers Falls, 220 A.D.3d 731, 732, 198 N.Y.S.3d 115 [citation and 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).  “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 at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873).

Here, the Town established, prima facie, that it did not receive prior written notice of the alleged defect by submitting, among other things, affidavits from the Town Superintendent of Highways, the Acting Commissioner of the Town's Department of Public Works, and the Town Clerk, each of whom averred that a records search failed to reveal any written notice of a defective condition at the subject location prior to the date of the accident (see Discepolo v. County of Nassau, 226 A.D.3d 646, 647, 208 N.Y.S.3d 303;  Grady v. Town of Hempstead, 223 A.D.3d 885, 886, 204 N.Y.S.3d 542).  To the extent the plaintiffs contend that the Town, in order to establish its prima facie entitlement to judgment as a matter of law, was required to demonstrate that it did not create the alleged defect through an affirmative act of negligence, the plaintiffs have misstated the applicable law (see Goodman v. City of New York, 230 A.D.3d 1115, 1117, 219 N.Y.S.3d 340;  Smith v. City of New York, 210 A.D.3d 53, 55–56, 69, 175 N.Y.S.3d 529).

Thus, the burden shifted to the plaintiffs to raise a triable issue of fact as to the applicability of the affirmative negligence or special use exceptions to the prior written notice rule (see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873).  The plaintiffs did not argue that the special use exception was applicable and failed to raise a triable issue of fact as to the affirmative negligence exception (see Grady v. Town of Hempstead, 223 A.D.3d at 886, 204 N.Y.S.3d 542).

The plaintiffs' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the Town's motion for summary judgment dismissing the complaint insofar as asserted against it.

BARROS, J.P., WOOTEN, TAYLOR and MCCORMACK, JJ., concur.