DELGADO v. COUNTY OF SUFFOLK (2007)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Werner, J.), dated September 6, 2005, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

 The plaintiff alleged that she was injured when she tripped and fell on a defective walkway on the Ammerman Campus of Suffolk Community College.   The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not have prior written notice of the allegedly dangerous condition that purportedly caused the plaintiff's fall, as required by the Suffolk County Charter (see Suffolk County Charter § C8-2A;  Ferreira v. County of Orange, 34 A.D.3d 724, 825 N.Y.S.2d 122;  Mazzola v. City of New York, 32 A.D.3d 906, 821 N.Y.S.2d 247;  Quiroz v. Incorporated Vil. of Cedarhurst, 31 A.D.3d 624, 819 N.Y.S.2d 101).   A municipality that has adopted a prior written notice law cannot be held liable for a defect within the meaning of the law absent the requisite written notice, unless an exception to the requirement applies (see Poirier v. City of Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555, 648 N.E.2d 1318;  Akcelik v. Town of Islip, 38 A.D.3d 483, 831 N.Y.S.2d 491;  Wilkie v. Town of Huntington, 29 A.D.3d 898, 816 N.Y.S.2d 148;  Katsoudas v. City of New York, 29 A.D.3d 740, 741, 815 N.Y.S.2d 243).   The only two exceptions recognized by the Court of Appeals are the municipality's affirmative creation of the defect and its special use of the property (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 473, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Perrington v. City of Mount Vernon, 37 A.D.3d 571, 829 N.Y.S.2d 667;  Filaski-Fitzgerald v. Town of Huntington, 18 A.D.3d 603, 604, 795 N.Y.S.2d 614).   Here, the plaintiff contends that the defect which allegedly resulted in her injuries was caused or created by the negligent repair of the walkway undertaken by the defendants.   However, the plaintiff's submissions in opposition were insufficient to raise a triable issue of fact because the conclusions set forth by the plaintiff's expert were not supported by empirical data or any relevant construction practices or industry standards, and the expert's affidavit failed to explain how he had reached the conclusions that he did (see Ioffe v. Hampshire House Apt. Corp., 21 A.D.3d 930, 931, 800 N.Y.S.2d 757;  Rochford v. City of Yonkers, 12 A.D.3d 433, 433-434, 786 N.Y.S.2d 535;  Sipourene v. County of Nassau, 266 A.D.2d 450, 451, 698 N.Y.S.2d 705).   Accordingly, the Supreme Court properly granted the defendants' motion (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).