GOFFI v. TOWN OF EASTCHESTER (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated October 18, 2021.  The order, insofar as appealed from, granted that branch of the motion of the defendant Town of Eastchester which was for summary judgment dismissing the amended complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against, among others, the defendant Town of Eastchester to recover damages for personal injuries that she allegedly sustained in April 2019 when she tripped and fell on a raised Belgian block paver on a sidewalk located in the Town. Thereafter, the Town moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against it, contending that it did not have prior written notice of the alleged defective sidewalk condition and that no exception to the written notice requirement applied under the circumstances.  In an order dated October 18, 2021, the Supreme Court, among other things, granted that branch of the motion.  The plaintiff appeals.

“When a municipality has adopted a prior written notice law, the municipality cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies.  Where such a local law is in effect, prior written notice of a defective condition is a condition precedent to maintaining an action against a municipality” (Walker v. City of Newburgh, 222 AD3d 809, 810 [citation, alterations, and internal quotation marks omitted];  see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474;  Schiller v. Town of Ramapo, 202 AD3d 1022, 1022;  see also Local Law No. 3–1994 of Town of Eastchester, § 2).  Where the municipality establishes that it lacked prior written notice, “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” (Smith v. City of New York, 210 AD3d 53, 69 [internal quotation marks omitted];  see Yarborough v. City of New York, 10 NY3d 726, 728;  Amabile v. City of Buffalo, 93 N.Y.2d at 474).  “The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition” (Quinn v. City of New Rochelle, 241 AD3d 581, 581 [internal quotation marks omitted];  see Oboler v. City of New York, 8 NY3d 888, 889).  “Alternatively, a plaintiff may raise a triable issue of fact regarding whether the municipality did, in fact, have prior written notice of the alleged defective condition” (Douglas v. City of Mount Vernon, N.Y., 226 AD3d 973, 974 [internal quotation marks omitted] ).

Here, the Town established, prima facie, that it did not have prior written notice of the alleged defect.  The Town's prior written notice statute provided, in relevant part, that “[n]o civil action shall be maintained against the Town ․ for damages or injuries to person or property sustained by reason of any defect in its sidewalks ․ unless [prior] written notice thereof, specifying the particular place, was actually given to the town clerk or to the superintendent of highways” (Local Law No. 3–1994 of Town of Eastchester, § 2).  In support of its motion, the Town submitted, inter alia, affidavits of its Town Clerk and Superintendent of Highways, both of whom averred that a search of the appropriate records failed to reveal any prior written notice of a defective condition at the subject location for a period of at least two years prior to and including the date of the accident (see Parthesius v. Town of Huntington, 210 AD3d 789, 790;  Defilippo v. City of Glen Cove, 178 AD3d 1019, 1020;  Coventry v. Town of Huntington, 165 AD3d 750, 752).  Contrary to the plaintiff's contention, the Belgian block paver over which she tripped, which was situated in a strip of Belgian block pavers between the sidewalk and the roadway, is part of the sidewalk and is, therefore, governed by the Town's prior written notice law (see Vehicle and Traffic Law § 144;  Lamorte v. Iadevaia, 195 AD3d 1008, 1008).

In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Town received prior written notice of the alleged defect.  Furthermore, the plaintiff failed to demonstrate the applicability of the exception to the prior written notice law that the Town affirmatively created the condition alleged through an act of negligence (see Goodman v. City of New York, 230 AD3d 1115, 1117–1118;  Torres v Incorporated Vil. of Rockville Ctr., 195 AD3d 974, 975–976).  The plaintiff concedes that the special use exception is inapplicable (see Yarborough v. City of New York, 10 NY3d at 728;  Goodman v. City of New York, 230 AD3d at 1117).

Accordingly, the Supreme Court properly granted that branch of the Town's motion which was for summary judgment dismissing the amended complaint insofar as asserted against it.

BARROS, J.P., VOUTSINAS, VENTURA and GOLIA, JJ., concur.