Corey v. Town of Huntington

• Decision Date: 06 July 2004
• Docket Number: 2003-09499.
• Citation: Corey v. Town of Huntington, 9 AD3d 345, 780 NYS2d 156, 2004 NY Slip Op 5774 (N.Y. App. Div. 2004)
• Parties: RENEE COREY, Appellant, v. TOWN OF HUNTINGTON, Respondent.
• Court: New York Supreme Court — Appellate Division

9 A.D.3d 345

780 N.Y.S.2d 156

2004 NY Slip Op 05774

RENEE COREY, Appellant, v. TOWN OF HUNTINGTON, Respondent.

2003-09499.

Appellate Division of the Supreme Court of the State of New York, Second Department.

July 6, 2004.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, J.), dated September 25, 2003, which granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action against the Town of Huntington for injuries she allegedly sustained on June 22, 2001. The plaintiff fell off the sidewalk in an area where the curb abutting it was several inches lower. The Town established its prima facie entitlement to judgment as a matter of law based upon the plaintiff's failure to comply with the prior written notice requirements of Town Law § 65-a and Huntington Town Code § 173-18. In opposition, the plaintiff argued that prior written notice was not required since the Town affirmatively created the condition, relying on several photographs of the site and the opinion of an expert engineer. The Supreme Court granted the motion, finding that the opinion of the plaintiff's expert that the alleged defect was caused by gradual settlement over a period of years did not establish that the Town created the defect or obviate the requirement of prior written notice.

One of the exceptions to the rule requiring prior written notice, discussed in Amabile v City of Buffalo (93 NY2d 471, 474 [1999]), is that the locality created the defect through an...