GUTIERREZ CONTRERAS v. VILLAGE OF PORT CHESTER (2019)

DECISION & ORDER

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

In February 2014, the plaintiff allegedly was walking in a crosswalk across a public street in the Village of Port Chester when she stepped in a pothole, lost her balance, and fell, sustaining injuries.  The plaintiff thereafter commenced this action against, among others, the Village to recover damages for personal injuries.  The Village, jointly with another defendant, moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it.  The Supreme Court, among other things, granted that branch of the motion, and the plaintiff appeals.

Where a municipality has enacted a prior written notice law, it cannot be held liable for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received such notice (see Liverpool v. City of New York, 163 A.D.3d 790, 791, 83 N.Y.S.3d 64).  However, the courts have recognized an exception to the prior written notice requirement in circumstances where “the municipality affirmatively created the defect through an act of negligence” (Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;  see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 127–128, 927 N.Y.S.2d 304, 950 N.E.2d 908;  Liverpool v. City of New York, 163 A.D.3d at 791, 83 N.Y.S.3d 64).  This exception is limited to work performed by the municipality that immediately resulted in the existence of a dangerous condition (see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;  Liverpool v. City of New York, 163 A.D.3d at 791, 83 N.Y.S.3d 64;  Wilson v. Incorporated Vil. of Hempstead, 120 A.D.3d 665, 666–667, 991 N.Y.S.2d 651).

“[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” (Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226).  Here, the plaintiff alleged, in her pleadings, that the Village created the alleged dangerous condition by virtue of repairs that it performed in the area.  Thus, to establish its prima facie entitlement to judgment as a matter of law, the Village was required to demonstrate, prima facie, both that it did not have prior written notice of the alleged defect, and that it did not create the alleged defect (see Trela v. City of Long Beach, 157 A.D.3d 747, 750, 69 N.Y.S.3d 58;  Loghry v. Village of Scarsdale, 149 A.D.3d 714, 715, 53 N.Y.S.3d 318;  McManus v. Klein, 136 A.D.3d 700, 701, 24 N.Y.S.3d 205;  Lima v. Village of Garden City, 131 A.D.3d 947, 948, 16 N.Y.S.3d 249;  Steins v. Incorporated Vil. of Garden City, 127 A.D.3d 957, 958, 7 N.Y.S.3d 419;  Wald v. City of New York, 115 A.D.3d 939, 941, 982 N.Y.S.2d 534;  Giaquinto v. Town of Hempstead, 106 A.D.3d 1049, 1050, 968 N.Y.S.2d 506;  Carlucci v. Village of Scarsdale, 104 A.D.3d 797, 798, 961 N.Y.S.2d 318).

There is no dispute that the Village had enacted a prior written notice law covering the subject defect (see Village of Port Chester Charter, Title VII, § 16), and that the Village did not receive such notice.  Further, the Village met its prima facie burden of demonstrating that it did not affirmatively create the defective condition.  The Village submitted an affidavit of an employee and a transcript of the employee's deposition testimony, demonstrating, prima facie, that it had not performed any repairs other than pothole repairs in the subject area in the last five years, and that pothole repairs were accomplished at that time using “cold patch,” which is only temporary.  In other words, after some time, a pothole filled with cold patch returns to its prior condition.  Under these circumstances, the Village demonstrated, prima facie, that it had not made a repair that immediately resulted in a dangerous condition (see Wilson v. Incorporated Vil. of Hempstead, 120 A.D.3d at 666, 991 N.Y.S.2d 651).  In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, we agree with the Supreme Court's determination to grant that branch of the motion which was for summary judgment dismissing the complaint insofar as asserted against the Village.

RIVERA, J.P., AUSTIN, COHEN and IANNACCI, JJ., concur.