BEECHER v. COUNTY OF NASSAU (2022)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant County of Nassau appeals from an order of the Supreme Court, Nassau County (Thomas Feinman, J.), entered May 1, 2020.  The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

On April 30, 2017, the plaintiff allegedly was injured when he tripped on a pothole in a crosswalk in Floral Park. In June 2018, the plaintiff commenced this action to recover damages for personal injuries against, among others, the County of Nassau.  The plaintiff alleged, inter alia, that the County created the alleged defect by improperly repairing the roadway.  Thereafter, the County moved for summary judgment dismissing the complaint insofar as asserted against it.  In an order entered May 1, 2020, the Supreme Court denied the County's motion, finding that the County failed to eliminate triable issues of fact as to whether it created the alleged defect.  The County appeals.

“ ‘A municipality that has enacted a prior written notice provision may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies’ ” (Dejesus v. Town of Mamaroneck, 189 A.D.3d 1172, 1172, 134 N.Y.S.3d 231, quoting Seegers v. Village of Mineola, 161 A.D.3d 910, 77 N.Y.S.3d 86 [internal quotation marks omitted]).  “To establish prima facie entitlement to judgment as a matter of law, the defendant municipality must show, prima facie, the lack of prior written notice;  once the defendant establishes that it lacks prior written notice, the burden then shifts to the plaintiff to demonstrate either that a question of fact exists in that regard or that one of the exceptions applies” (Vaisman v. Village of Croton–on–Hudson, ––– A.D.3d ––––, ––––, ––– N.Y.S. ––––, 2022 N.Y. Slip Op. 05885, 2022 WL 10776021, *2 [2d Dept.];  see Smith v. City of New York, ––– A.D.3d ––––, ––– N.Y.S. ––––, 2022 N.Y. Slip Op. 05226, 2022 WL 4361183 [2d Dept.]).  Insofar as relevant to this appeal, “an exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence” (Piazza v. Volpe, 153 A.D.3d 563, 564, 59 N.Y.S.3d 466).

Here, the County established, prima facie, that it did not have prior written notice of the alleged defect (see Thompson v. Nassau County, 200 A.D.3d 823, 825, 160 N.Y.S.3d 274;  Loghry v. Village of Scarsdale, 149 A.D.3d 714, 715–716, 53 N.Y.S.3d 318).  However, in opposition, the plaintiff raised a triable issue of fact as to whether the County affirmatively created the alleged defect (see Boorman v. Town of Tuxedo, 204 A.D.3d 742, 743, 164 N.Y.S.3d 501;  Pluchino v. Village of Walden, 63 A.D.3d 897, 880 N.Y.S.2d 545).

The County's remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the County's motion for summary judgment dismissing the complaint insofar as asserted against it.

DILLON, J.P., IANNACCI, RIVERA and WOOTEN, JJ., concur.