Fischer v. Village of New Sq. , 9 N.Y.S.3d 63 ( 2015 )

Fischer v Village of New Sq. (2015 NY Slip Op 02929)

Fischer v Village of New Sq.

2015 NY Slip Op 02929

Decided on April 8, 2015

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 8, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
COLLEEN D. DUFFY, JJ.

2014-00577
(Index No. 31147/11)

[*1]Matel Fischer, et al., appellants,

v

Village of New Square, defendant third-party plaintiff-respondent; Town of Ramapo, third-party defendant.

Feerick Lynch MacCartney PLLC, South Nyack, N.Y. (J. David MacCartney, Jr., of counsel), for appellants.

Michael L. Klein, Town Attorney, Suffern, N.Y. (Michael Specht of counsel), for defendant third-party plaintiff-respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Rockland County (Alfieri, Jr., J.), dated October 31, 2013, which granted the motion of the defendant third-party plaintiff for summary judgment dismissing the complaint, and denied their cross motion for summary judgment striking the defendant third-party plaintiff's tenth affirmative defense.

ORDERED that the order is affirmed, with costs.

On April 26, 2010, the plaintiff Matel Fischer (hereinafter the injured plaintiff) allegedly was injured when she tripped and fell over a hole in the roadway while crossing the street at the intersection of Washington Avenue and Bush Lane in the defendant third-party plaintiff Village of New Square (hereinafter the Village). At the time of the accident, there was a contract in place between the Village and the third-party defendant Town of Ramapo, pursuant to which the Town was responsible for street maintenance and repair in the Village.

"Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the defect or dangerous condition, or an exception to the prior written notice requirement applies" (Palka v Village of Ossining, 120 AD3d 641, 641; see Amabile v City of Buffalo, 93 NY2d 471; Keating v Town of Oyster Bay, 111 AD3d 604). " Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it'" (Palka v Village of Ossining, 120 AD3d at 642, quoting Miller v Village of E. Hampton, 98 AD3d 1007, 1008; see Amabile v City of Buffalo, 93 NY2d at 471).

In support of its motion for summary judgment dismissing the complaint, the Village established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that it lacked prior written notice of the hole over which the injured plaintiff tripped, as required by its prior written notice statute. In opposition, the plaintiff failed to raise a triable issue [*2]of fact as to whether the Village received prior written notice as required by its prior written notice statute (see McCarthy v City of White Plains, 54 AD3d 828), or that either the Village or the Town, on the Village's behalf, created the hole through an affirmative act of negligence. Further, the plaintiffs did not allege that the special use exception applied.

The Supreme Court also properly denied the plaintiffs' cross motion for summary judgment striking the Village's tenth affirmative defense, which alleged that it did not receive prior written notice of the alleged defect.

The plaintiffs' remaining contention is without merit.

Accordingly, the Supreme Court properly granted the Village's motion for summary judgment dismissing the complaint and denied the plaintiffs' cross motion for summary judgment striking the Village's tenth affirmative defense.

DILLON, J.P., DICKERSON, COHEN and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court