SMITH v. VILLAGE OF ROCKVILLE CENTRE (2008)

In an action to recover damages for personal injuries, the defendant Village of Rockville Centre appeals from an order of the Supreme Court, Nassau County (Winslow, J.), dated June 24, 2008, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, and the appellant's motion for summary judgment dismissing the complaint insofar as asserted against it is granted.

The plaintiff allegedly sustained injuries when she tripped and fell on a public sidewalk within the defendant Village of Rockville Centre (hereinafter the Village).   Specifically, she tripped over “uneven bricks.”   Those bricks had been installed by a contractor the Village hired.

On its motion for summary judgment dismissing the complaint insofar as asserted against it, the Village made a prima facie showing of entitlement to judgment as a matter of law by providing evidence demonstrating that it lacked prior written notice of the allegedly dangerous condition in the sidewalk, as required by the Code of Incorporated Village of Rockville Centre § 341-a (see Jacobs v. Village of Rockville Ctr., 41 A.D.3d 539, 540, 838 N.Y.S.2d 597).   Contrary to the Supreme Court's determination, in opposition, the plaintiff failed to raise a triable issue of fact.   While the plaintiff attempted to raise a triable issue of fact as to the applicability of the so-called “affirmative negligence exception” to the statutory rule requiring prior written notice, she failed to provide any evidence tending to show that work by the Village's contractor “immediately result[ed] in the existence of” the uneven brick “condition” (Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [emphasis in original];  see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873).   Accordingly, the Village's motion for summary judgment dismissing the complaint insofar as asserted against it should have been granted (see Jacobs v. Village of Rockville Ctr., 41 A.D.3d at 540, 838 N.Y.S.2d 597).