JASON v. TOWN OF NORTH HEMPSTEAD

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

Janis JASON, et al., appellants, v. TOWN OF NORTH HEMPSTEAD, respondent, et al., defendants.

Decided: April 28, 2009

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOSEPH COVELLO, and THOMAS A. DICKERSON, JJ. Bergman, Bergman, Goldberg & Lamonsoff, LLP (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Diane K. Toner], of counsel), for appellants. Richard S. Finkel, Town Attorney, Manhasset, N.Y. (William J. Gillman of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), entered November 26, 2007, as granted that branch of the motion of the defendant Town of North Hempstead which was for summary judgment dismissing the complaint insofar as asserted against it.

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

The plaintiff Janis Jason (hereinafter the injured plaintiff) allegedly was injured when, as she stepped off of a sidewalk and onto a street maintained by the defendant Town of North Hempstead, she slipped and fell on a sloped concrete “gutter slab” on the street.   Subsequently, alleging, among other things, that the gutter slab constituted a dangerous condition, the injured plaintiff and her husband, suing derivatively, commenced the instant personal injury action against, among others, the Town.

 On its motion, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, the Town made a prima facie showing of entitlement to judgment as a matter of law by providing evidence demonstrating that it lacked prior written notice of the allegedly dangerous condition, as required by North Hempstead Code § 26-1 (see Smith v. Village of Rockville Centre, 57 A.D.3d 649, 650, 870 N.Y.S.2d 67).   In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the Town received prior written notice, or as to the applicability of either of the “two recognized exceptions to the prior written notice requirement” (McCarthy v. City of White Plains, 54 A.D.3d 828, 829-830, 863 N.Y.S.2d 500;  see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).   Although the plaintiffs attempted to raise an issue of fact as to the applicability of the “affirmative negligence exception,” they failed to provide any evidence tending to show that the allegedly dangerous condition was created through an affirmative act of negligence of the Town, and that such act immediately resulted in that condition's existence (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;  Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270;  San Marco v. Village/Town of Mt. Kisco, 57 A.D.3d 874, 876-77, 871 N.Y.S.2d 236).   Furthermore, although the plaintiffs attempted to raise an issue of fact as to the applicability of the “special use exception,” they failed to demonstrate that the gutter slab conferred a special benefit upon the Town (see Loiaconi v. Village of Tarrytown, 36 A.D.3d 864, 865, 829 N.Y.S.2d 191;  Lopez v. G & J Rudolph Inc., 20 A.D.3d 511, 513, 799 N.Y.S.2d 254;   Braunstein v. County of Nassau, 294 A.D.2d 323, 741 N.Y.S.2d 565;  Barnes v. City of Mount Vernon, 245 A.D.2d 407, 408, 666 N.Y.S.2d 206;  Vise v. County of Suffolk, 207 A.D.2d 341, 342, 615 N.Y.S.2d 429).   Accordingly, the Supreme Court properly granted that branch of the Town's motion which was for summary judgment dismissing the complaint insofar as asserted against the Town.

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