Avellino v. City of N.Y.

• Decision Date: 19 June 2013
• Citation: 2013 N.Y. Slip Op. 04567,107 A.D.3d 836,968 N.Y.S.2d 114
• Parties: Andrew AVELLINO, respondent, v. CITY OF NEW YORK, appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 836

968 N.Y.S.2d 114

2013 N.Y. Slip Op. 04567

Andrew AVELLINO, respondent,

v.CITY OF NEW YORK, appellant.

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

June 19, 2013.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and Elizabeth S. Natrella of counsel), for appellant.

Arniotes & Calakos, LLP, Brooklyn, N.Y. (George G. Coffinas and Demetra Arniotes Calakos of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, THOMAS A. DICKERSON, and LEONARD B. AUSTIN, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Richmond County (Aliotta, J.), dated December 2, 2011, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

Where a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries arising from a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Miller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171;De La Reguera v. City of Mount Vernon, 74 A.D.3d 1127, 1127, 904 N.Y.S.2d 108;Schleif v. City of New York, 60 A.D.3d 926, 927–928, 875 N.Y.S.2d 259). The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality ( see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Poirier v. City of Schenectady, 85 N.Y.2d 310, 314–315, 624 N.Y.S.2d 555, 648 N.E.2d 1318).

Contrary to the plaintiff's contention, the defendant, the City of New York, established its prima facie entitlement to judgment as a matter of law by presenting evidence that it did not receive prior written notice of the condition that allegedly caused the plaintiff's injuries ( see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129, 927 N.Y.S.2d 304, 950 N.E.2d 908;cf. Bruni v. City of New York, 2 N.Y.3d 319, 778 N.Y.S.2d 757, 811 N.E.2d 19). In opposition, the plaintiff failed to raise a triable issue of fact as to...