GENEVIEVE SCOVAZZO PLAINTIFF RESPONDENT v. TOWN OF TONAWANDA DEFENDANT APPELLANT

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Supreme Court, Appellate Division, Fourth Department, New York.

GENEVIEVE SCOVAZZO, PLAINTIFF–RESPONDENT, v. TOWN OF TONAWANDA, DEFENDANT–APPELLANT.

CA 10–02403

Decided: April 29, 2011

PRESENT:  CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ. WALSH, ROBERTS & GRACE, BUFFALO (MARK DELLA POSTA OF COUNSEL), FOR DEFENDANT–APPELLANT. CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum:  Plaintiff commenced this action to recover damages for injuries that she sustained when she tripped and fell on the cover of a shut-off valve for a water main, which was allegedly above the grade of a sidewalk in defendant Town of Tonawanda (Town).   Supreme Court erred in denying the Town's motion for summary judgment dismissing the complaint.   The Town established its entitlement to judgment as a matter of law by submitting evidence in admissible form that prior written notice of the allegedly defective condition was not given to the Town Clerk or Town Superintendent of Highways, as required by section 68–2 of the Code of the Town of Tonawanda (see Town Law § 65–a [2];  see also Hall v. City of Syracuse, 275 A.D.2d 1022;  Wisnowski v. City of Syracuse, 213 A.D.2d 1069).   In opposition to the motion, plaintiff failed to raise a triable issue of fact whether such prior written notice was given (see generally Wohlars v. Town of Islip, 71 AD3d 1007, 1008–1009).   Although plaintiff sought to demonstrate that an exception to the prior written notice requirement applied by attempting to raise a triable issue of fact whether the Town “created the defect or hazard through an affirmative act of negligence” (Amabile v. City of Buffalo, 93 N.Y.2d 471, 474), plaintiff did not raise that theory of liability in her notice of claim, amended notice of claim or complaint.   Thus, she is not permitted to raise it for the first time in opposition to defendant's motion for summary judgment (see Semprini v. Village of Southampton, 48 AD3d 543, 544;  Keeler v. City of Syracuse, 143 A.D.2d 518;  see generally Hogan v. Grand Union Co., 126 A.D.2d 875).

Patricia L. Morgan

Clerk of the Court