HINDS PEARL v. COUNTY OF WESTCHESTER (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (David F. Everett, J.), dated May 6, 2022.  The order, insofar as appealed from, granted those branches of the separate motions of the defendant County of Westchester and the defendant Bilotta Construction Corp. which were for summary judgment dismissing the complaint insofar as asserted against each of them.

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

The plaintiff commenced this action to recover damages for personal injuries she allegedly sustained in August 2015 when the bicycle she was riding hit a height differential between a curb and an asphalt walkway in front of the east parking lot at the Westchester County Center, causing her to fall.  In 2007, the defendant County of Westchester had contracted with the defendant Bilotta Construction Corp. (hereinafter Bilotta) to renovate the east parking lot of the Westchester County Center.  As part of these renovations, Bilotta installed the asphalt walkway and curbing upon which the plaintiff's accident occurred.  The County and Bilotta separately moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against each of them.  In an order dated May 6, 2022, the Supreme Court, among other things, granted those branches of the defendants' separate motions.  The plaintiff appeals.

“A contractor ․ may be held liable for an affirmative act of negligence that results in the creation of a dangerous condition upon a public street or sidewalk” (Santelises v. Town of Huntington, 124 AD3d 863, 865).  “A builder or contractor is justified in relying upon the plans and specifications which [it] has contracted to follow” (Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 46;  see Corniel v CCA Civil–Halmar Intl., LLC, 215 AD3d 731, 732).  “A contractor that performs its work in accordance with contract plans may not be held liable unless those plans are so patently defective as to place a contractor of ordinary prudence on notice that the project, if completed according to the plans, is potentially dangerous” (Corniel v CCA Civil–Halmar Intl., LLC, 215 AD3d at 732 [internal quotation marks omitted];  see Nichols–Sisson v Windstar Airport Serv., Inc., 99 AD3d 770, 772).

Here, Bilotta established, prima facie, that in renovating the asphalt walkway and curbing, it performed its work in accordance with the County's plans and specifications (see Corniel v CCA Civil–Halmar Intl., LLC, 215 AD3d at 732;  Hartofil v McCourt & Trudden Funeral Home, Inc., 57 AD3d 943, 945).  Bilotta submitted evidence demonstrating that its work was inspected daily to ensure compliance with the County's plans and specifications and that the County conducted a final inspection and approved Bilotta's work.  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the County's plans were so clearly defective that a contractor of ordinary prudence would not have performed the work (see Nichols–Sisson v Windstar Airport Serv., Inc., 99 AD3d at 772;  Gee v. City of New York, 304 A.D.2d 615, 616).

“Prior written notice of a defective condition is a condition precedent to maintaining an action against a municipality where, as here, there is a local law requiring such notice” (Kolenda v Incorporated Vil. of Garden City, 215 AD3d 647, 648 [internal quotation marks omitted];  see Parthesius v. Town of Huntington, 210 AD3d 789, 790;  see also Westchester County Administrative Code § 780.01).  “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” (Walker v. City of Newburgh, 222 AD3d 809, 810 [internal quotation marks omitted];  see Morreale v. Town of Smithtown, 153 AD3d 917, 918).  “Where the municipality establishes, prima facie, that it lacked prior written notice, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the prior written notice rule, namely, that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the municipality” (Kolenda v Incorporated Vil. of Garden City, 215 AD3d at 648;  see Groninger v. Village of Mamaroneck, 17 NY3d 125, 129–130;  Smith v. City of New York, 210 AD3d 53, 69).  “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 County demonstrated, prima facie, that it did not have prior written notice of the alleged defect.  In support of its motion, the County submitted, inter alia, affidavits of the Clerk of the County's Board of Legislators and the Commissioner of the County's Department of Public Works and Transportation, 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 (see Parthesius v. Town of Huntington, 210 AD3d at 790;  Cuomo v Incorporated Vil. of Garden City, 188 AD3d 987, 988).  In opposition, the plaintiff failed to raise a triable issue of fact as to whether the County received prior written notice of the alleged defective condition.  Furthermore, the plaintiff failed to demonstrate the applicability of the exception to the prior written notice law that the County affirmatively created the alleged condition through an act of negligence (see Morreale v. Town of Smithtown, 153 AD3d at 918).  The special use exception is not at issue here.

Although prior written notice was not required with respect to the allegations that the County negligently designed the asphalt walkway (see Hughes v. Jahoda, 75 N.Y.2d 881, 883;  Meyer v. Town of Brookhaven, 204 A.D.2d 699, 700), the County established, prima facie, that it did not negligently design the asphalt walkway (see Richards v. Passarelli, 77 AD3d 905, 909).  In opposition, the plaintiff failed to raise a triable issue of fact (see Landsman v. Tolo, 194 AD3d 1034, 1035).

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, the Supreme Court properly granted those branches of the defendants' separate motions which were for summary judgment dismissing the complaint insofar as asserted against each of them.

BARROS, J.P., GENOVESI, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.