HEALY v. VILLAGE OF PATCHOGUE (2006)

In an action to recover damages for personal injuries, the defendant Village of Patchogue appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated February 22, 2005, as, upon reargument, adhered to a prior determination in an order dated September 20, 2004, denying its motion for summary judgment dismissing the complaint insofar as asserted against it and granting the plaintiff's cross motion to strike its answer to the extent of directing it to produce certain records and incident reports.

ORDERED that the order dated February 22, 2005, is reversed insofar as appealed from, on the law, with costs, upon reargument, the motion for summary judgment is granted, the complaint is dismissed in its entirety, the cross motion is denied as academic, and the order dated September 20, 2004, is modified accordingly.

 Pursuant to Village Law § 6-628, a village may be liable for personal injuries caused by a dangerous condition on its streets if the village has received prior written notice of the condition (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Katz v. City of New York, 87 N.Y.2d 241, 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374;  Farrago v. Great Atl. & Pac. Tea Co., Inc., 17 A.D.3d 631, 632, 794 N.Y.S.2d 107).   The Court of Appeals has recognized only two exceptions to the prior written notice rule, namely, where the village created the defect through an affirmative act of negligence, or where a “special use” confers a special benefit to the village (see Amabile v. City of Buffalo, supra at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).

 Here, on its motion for summary judgment, the defendant Village of Patchogue established its entitlement to judgment as a matter of law.   The deposition testimony of the Village's Superintendent of Public Works, as well as the affidavits of the Village's Clerk and Highway Foreman, established that the Village did not receive prior written notice of the allegedly dangerous condition in the roadway which allegedly caused the plaintiff's injuries (see Rochford v. City of Yonkers, 12 A.D.3d 433, 786 N.Y.S.2d 535;  Butts v. Village of Sag Harbor, 260 A.D.2d 419, 688 N.Y.S.2d 197).   Since, in response, the plaintiff failed to raise a triable issue of fact as to whether the Village received prior written notice of that condition, or as to whether one of the two exceptions to the prior written notice rule applied, the Supreme Court, upon reargument, should have granted the motion (see Amabile v. City of Buffalo, supra at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Albright v. City of New York, 25 A.D.3d 577, 807 N.Y.S.2d 146;  Lopez v. G & J Rudolph Inc., 20 A.D.3d 511, 799 N.Y.S.2d 254;  Ganzenmuller v. Incorporated Vil. of Port Jefferson, 18 A.D.3d 703, 795 N.Y.S.2d 744;  Farrago v. Great Atl. & Pac. Tea Co., Inc., supra at 632, 794 N.Y.S.2d 107).

The Village's remaining contentions are academic in light of our determination.