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

Michael PAGILLO, Individually and as Administrator of the Estate of Sue Pagillo, Deceased, Respondent, v. CITY OF ONEONTA, Appellant.

Decided: January 26, 2006

Before:  MERCURE, J.P., PETERS, SPAIN, MUGGLIN and ROSE, JJ. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Avis Decaire of counsel), for appellant. Scarzafava & Basdekis, Oneonta (Theodoros Basdekis of counsel), for respondent.

Appeal from an order of the Supreme Court (Dowd, J.), entered November 10, 2004 in Otsego County, which denied defendant's motion for summary judgment dismissing the complaint.

Sue Pagillo 1 and plaintiff, her husband, brought this action to recover damages for injuries she allegedly sustained in June 2002 when she fell after stepping into a depression containing loose gravel and water on a public sidewalk in the City of Oneonta, Otsego County.   Defendant moved for summary judgment on the ground that, among other things, it had not received prior written notice of the allegedly dangerous condition of the sidewalk as required by defendant's Charter.   Finding that prior written notice was irrelevant because defendant had actual notice of the defective condition, Supreme Court denied defendant's motion.   Defendant appeals.

 As the proponent of the motion for summary judgment, defendant met its initial burden by presenting undisputed proof that it did not receive prior written notice.   This shifted the burden to Pagillo and plaintiff to demonstrate the availability of a recognized exception to this notice requirement.   We have acknowledged that there are now only two such recognized exceptions, neither of which is applicable here (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999];  Dalton v. City of Saratoga Springs, 12 A.D.3d 899, 900, 784 N.Y.S.2d 702 [2004];   Hendrickson v. City of Kingston, 291 A.D.2d 709, 709, 738 N.Y.S.2d 433 [2002], appeal dismissed, lv. denied 98 N.Y.2d 662, 746 N.Y.S.2d 277, 773 N.E.2d 1015 [2002] ).   Further, all of the Appellate Divisions have now held that a municipality's actual notice of the condition which allegedly caused a plaintiff's fall does not avoid the statutory written notice requirement (see Oswald v. City of Niagara Falls, 13 A.D.3d 1155, 1157, 787 N.Y.S.2d 757 [4th Dept.2004];  Lysohir v. County of Suffolk, 10 A.D.3d 638, 639, 781 N.Y.S.2d 693 [2d Dept.2004];  Campisi v. Bronx Water & Sewer Service, 1 A.D.3d 166, 167, 766 N.Y.S.2d 560 [1st Dept.2003];  Bornt v. Town of Pittstown, 248 A.D.2d 854, 855, 669 N.Y.S.2d 979 [3d Dept.1998], lv. denied 92 N.Y.2d 803, 677 N.Y.S.2d 73, 699 N.E.2d 433 [1998] ).

To the extent that the earlier cases cited by Supreme Court (Jackson v. City of Mount Vernon, 213 A.D.2d 892, 623 N.Y.S.2d 658 [1995], lv. denied 85 N.Y.2d 812, 631 N.Y.S.2d 288, 655 N.E.2d 401 [1995];  Karkowski v. County of Madison, 241 A.D.2d 882, 661 N.Y.S.2d 91 [1997] ) suggest to the contrary, they predate Amabile and are not to be followed.

This conclusion makes it unnecessary for us to consider defendant's remaining contention.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as denied defendant's motion for summary judgment on the ground of the absence of prior written notice;  motion granted to that extent;  and, as so modified, affirmed.


1.   While this appeal was pending, Sue Pagillo died and her husband was substituted as administrator of her estate.



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