DONOHUE v. CITY OF LONG BEACH (2026)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Gregg Roth, J.), entered February 3, 2025.  The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant, City of Long Beach, to recover damages for personal injuries he allegedly sustained when he slipped and fell on ice while traversing a crosswalk.  After discovery, the defendant moved for summary judgment dismissing the complaint.  In an order entered February 3, 2025, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

“A municipality that has enacted a prior written notification law may avoid liability for a defect or hazardous condition that falls within the scope of the law if it can establish that it has not been notified in writing of the existence of the defect or hazard at a specific location” (Cross v. Town of Hempstead, 210 A.D.3d 864, 864, 178 N.Y.S.3d 200 [internal quotation marks omitted];  see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).  “Where the municipality makes a prima facie showing that it lacked prior written notice of the alleged defect, 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” (Reynolds v. City of Poughkeepsie, 230 A.D.3d 1260, 1261, 218 N.Y.S.3d 452 [internal quotation marks omitted];  see D.D. v Incorporated Vil. of Freeport, 186 A.D.3d 795, 796, 127 N.Y.S.3d 764).  “The affirmative negligence exception is limited to work done by a municipality ‘that immediately results in the existence of a dangerous condition’ ” (Wilson v. Incorporated Vil. of Freeport, 212 A.D.3d 870, 871, 182 N.Y.S.3d 225 [emphasis omitted], quoting Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270).

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting an affidavit of its Commissioner of Public Works, who averred that the defendant had no prior written notice of the alleged condition as required by section 256A(2) of the Charter of the City of Long Beach (see Banschick v. City of Long Beach, 219 A.D.3d 792, 792, 195 N.Y.S.3d 109;  O'Connor v. City of Long Beach, 218 A.D.3d 482, 483, 193 N.Y.S.3d 75).  In opposition, the plaintiff failed to raise a triable issue of fact (see Jones v. City of Long Beach, 242 A.D.3d 1068, 1069, 241 N.Y.S.3d 517;  Cross v. Town of Hempstead, 210 A.D.3d at 865, 178 N.Y.S.3d 200).

Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

GENOVESI, J.P., WARHIT, LOVE and QUIRK, JJ., concur.