Albano v. Suffolk Cnty.

• Decision Date: 10 October 2012
• Citation: Albano v. Suffolk Cnty., 99 A.D.3d 741, 952 N.Y.S.2d 245, 2012 N.Y. Slip Op. 6769 (N.Y. App. Div. 2012)
• Parties: Rose ALBANO, appellant, v. SUFFOLK COUNTY, et al., respondents.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 741

952 N.Y.S.2d 245

2012 N.Y. Slip Op. 06769

Rose ALBANO, appellant,

v.SUFFOLK COUNTY, et al., respondents.

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

Oct. 10, 2012.

Harmon, Linder, & Rogowsky, New York, N.Y. (Mitchell Dranow of counsel), for appellant.

Dennis M. Cohen, County Attorney, Hauppauge, N.Y. (Diana T. Bishop of counsel), for respondents.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated December 14, 2010, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff alleged that, while attending a graduation ceremony at the defendant Suffolk County Community College (hereinafter the College), she tripped and fell on a defective condition on the campus grounds. The plaintiff commenced this action to recover damages for personal injuries against the Collegeand Suffolk County. The defendants moved for summary judgment dismissing the complaint on the ground that they had no prior written notice of the alleged defect as required by Suffolk County Charter § C8–2A. “A municipality that has adopted a ‘prior written notice law’ cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies” ( Forbes v. City of New York, 85 A.D.3d 1106, 1107, 926 N.Y.S.2d 309;see Poirier v. City of Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555, 648 N.E.2d 1318;Hanover Ins. Co. v. Town of Pawling, 94 A.D.3d 1055, 943 N.Y.S.2d 152,lv. denied19 N.Y.3d 811, 2012 N.Y. Slip Op. 83576, 2012 WL 3930687 [2012];Abano v. Suffolk County Community Coll., 66 A.D.3d 719, 887 N.Y.S.2d 200). “The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property” ( Forbes v. City of New York, 85 A.D.3d at 1107, 926 N.Y.S.2d 309;see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not have prior written notice of the alleged dangerous condition, and that it was located in an area subject to the prior written notice provisions of Suffolk County Charter § C8–2A ( see Abano v. Suffolk County Community Coll., 66 A.D.3d at 719, 887 N.Y.S.2d 200;cf. Balsan v. County of Suffolk, 19 A.D.3d 342, 796 N.Y.S.2d 413). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the...