Carlucci v. Vill. of Scarsdale

• Decision Date: 20 March 2013
• Parties: Noreen S. CARLUCCI, appellant, v. VILLAGE OF SCARSDALE, respondent.
• Court: New York Supreme Court — Appellate Division

104 A.D.3d 797

961 N.Y.S.2d 318

2013 N.Y. Slip Op. 01798

Noreen S. CARLUCCI, appellant,

v.VILLAGE OF SCARSDALE, respondent.

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

March 20, 2013.

Don David Carlucci, Scarsdale, N.Y., for appellant.

Thomas Moore (Andrea G. Sawyers, Melville, N.Y. [Dominic P. Zafonte], of counsel), for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered June 28, 2012, which granted the defendant's 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 denied.

The plaintiff allegedly sustained injuries when she tripped and fell as a result of an alleged defect in a sidewalk in the Village of Scarsdale. In her notice of claim, verified complaint, and verified bill of particulars, the plaintiff alleged, inter alia, that the defendant Village created the dangerous condition that caused her to fall by negligently designing and constructing the sidewalk, and that she tripped because of a height differential between the raised and sloping bluestone sidewalk flags and the depressed cobblestones. The defendant moved for summary judgment dismissing the complaint on the ground that it had not received prior written notice of the alleged defect. In support of the motion, the defendant submitted affidavits from its Village Clerk and its Superintendent of Public Works, both of whom averred that they conducted a record search and found no record that the defendant had received written notice of the subject sidewalk defect.The Supreme Court granted the defendant's motion.

Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77, 715 N.E.2d 104;Miller v. Village of E. Hampton, 98 A.D.3d 1007, 951 N.Y.S.2d 171;Braver v. Village of Cedarhurst, 94 A.D.3d 933, 942 N.Y.S.2d 178;Pennamen v. Town of Babylon, 86 A.D.3d 599, 927 N.Y.S.2d 164). “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” ( Miller v. Village of E. Hampton, 98 A.D.3d at 1008, 951 N.Y.S.2d 171;see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Braver v. Village of Cedarhurst, 94 A.D.3d 933, 942 N.Y.S.2d 178). When one of these recognized exceptions applies, the written notice requirement is obviated ( see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 127, 927 N.Y.S.2d 304, 950 N.E.2d 908).

Here, the defendant established that it did not receive prior written notice of the alleged dangerous condition. Nonetheless, it failed to demonstrate its prima facie entitlement to judgment as a matter of law. “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” ( Foster v. Herbert Slepoy Corp., 76 A.D.3d 210,...