WILKIE v. TOWN OF HUNTINGTON (2006)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Suffolk County (Pitts, J.), dated July 20, 2005, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

 The plaintiff Anne Wilkie tripped and fell in a pothole on a roadway in the Town of Huntington.   Where, as here, a municipality has enacted a prior written notice statute, it cannot be liable for injuries caused by an improperly maintained roadway unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Lopez v. G & J Rudolph, 20 A.D.3d 511, 512, 799 N.Y.S.2d 254;  Ganzenmuller v. Incorporated Vil. of Port Jefferson, 18 A.D.3d 703, 704, 795 N.Y.S.2d 744).   Actual or constructive notice of a defect does not satisfy this requirement (see Amabile v. City of Buffalo, supra at 475-476, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Silva v. City of New York, 17 A.D.3d 566, 567, 793 N.Y.S.2d 478).

 The defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence that they had no prior written notice of the roadway defect that allegedly caused the injured plaintiff's fall (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Lopez v. G & J Rudolph, supra;  Gold v. County of Westchester, 15 A.D.3d 439, 440, 790 N.Y.S.2d 675).   Although an exception to the prior written notice requirement exists when a municipality creates the subject defect through an affirmative of negligence (see Amabile v. City of Buffalo, supra at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Lopez v. G & J Rudolph, supra at 512, 799 N.Y.S.2d 254), the plaintiffs' evidentiary submissions were insufficient to raise a triable issue of fact as to whether the roadway defect was created by the defendants' affirmative negligence (see Gold v. County of Westchester, supra at 440, 790 N.Y.S.2d 675;  Corey v. Town of Huntington, 9 A.D.3d 345, 346, 780 N.Y.S.2d 156).   Moreover, the defendants' “time and material reports” did not constitute prior written notice of the defective condition, as Town of Huntington Code § 274-3 does not provide for the “written acknowledgment” of a defect by the defendants' internally generated documents (see Dalton v. City of Saratoga Springs, 12 A.D.3d 899, 901 n. 2, 784 N.Y.S.2d 702;  cf. Bruni v. City of New York, 2 N.Y.3d 319, 324-325, 778 N.Y.S.2d 757, 811 N.E.2d 19).

Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint (see Regan v. City of New York, 8 A.D.3d 462, 463, 778 N.Y.S.2d 294).