GANZENMULLER v. INCORPORATED VILLAGE OF PORT JEFFERSON

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

Sara Ann GANZENMULLER, respondent, v. INCORPORATED VILLAGE OF PORT JEFFERSON, appellant, et al., defendant.

Decided: May 23, 2005

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, DANIEL F. LUCIANO, and STEVEN W. FISHER, JJ. Devitt Spellman Barrett, LLP, Uniondale, N.Y. (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger [Kathleen D. Foley] of counsel), for appellant. Felberbaum, Halbridge & Wirth, Commack, N.Y. (Samuel E. Felberbaum of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Incorporated Village of Port Jefferson appeals from an order of the Supreme Court, Nassau County (Burke, J.), dated August 2, 2004, which denied its motion pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against it for failure to state a cause of action.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Incorporated Village of Port Jefferson, and the action against the remaining defendant is severed.

 Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for personal injuries caused by an improperly-maintained sidewalk unless it received written notice of the defect or an exception to the written notice requirement applies (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Mollin v. County of Nassau, 2 A.D.3d 600, 769 N.Y.S.2d 59;  Price v. County of Suffolk, 303 A.D.2d 571, 756 N.Y.S.2d 758).   The Court of Appeals has recognized only two exceptions to the prior written notice rule, “namely, where the locality created the defect or hazard through an affirmative act of negligence ․ and where a ‘special use’ confers a special benefit upon the locality” (Amabile v. City of Buffalo, supra at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).   Here, the defendant Village established that it had no prior written notice of the alleged sidewalk defect which caused the plaintiff to fall.   Furthermore, contrary to the plaintiff's contention, the use of the sidewalk as a “driveway apron” leading into a parking lot for several stores and restaurants did not confer a special benefit upon the defendant Village which would exempt the plaintiff from compliance with the written notice requirement (see Poirier v. Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555, 648 N.E.2d 1318;  Braunstein v. County of Nassau, 294 A.D.2d 323, 741 N.Y.S.2d 565;  Marona v. Incorporated Village of Mamaroneck, 203 A.D.2d 337, 609 N.Y.S.2d 938).   In addition, the plaintiff did not allege that the Village committed any act which would constitute affirmative negligence (see Corey v. Town of Huntington, 9 A.D.3d 345, 780 N.Y.S.2d 156).   Under these circumstances, the Supreme Court should have granted the motion to dismiss the complaint insofar as asserted against the Village (see Odell v. Town of Riverhead, New York, 305 A.D.2d 477, 758 N.Y.S.2d 829;  Fiordalisi v. Town of Huntington, 275 A.D.2d 299, 712 N.Y.S.2d 403;  Claudio v. Incorporated Vil. of Patchogue, 235 A.D.2d 385, 652 N.Y.S.2d 76).

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