DeCaprariis-Salerno v. Inc. Vill. of Rockville Ctr.

• Decision Date: 26 January 2022
• Docket Number: 2019–09747,Index No. 5789/16
• Citation: 201 A.D.3d 874,157 N.Y.S.3d 739 (Mem)
• Parties: Angela DECAPRARIIS–SALERNO, et al., appellants, v. INCORPORATED VILLAGE OF ROCKVILLE CENTRE, respondent.
• Court: New York Supreme Court — Appellate Division

201 A.D.3d 874

157 N.Y.S.3d 739 (Mem)

Angela DECAPRARIIS–SALERNO, et al., appellants,

v.INCORPORATED VILLAGE OF ROCKVILLE CENTRE, respondent.

2019–09747

Index No. 5789/16

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

Argued—December 6, 2021

January 26, 2022

Sullivan Papain Block McGrath & Cannavo P.C., Garden City, NY (Stephen C. Glasser and Christopher J. DelliCarpini of counsel), for appellants.

Bartlett LLP, Garden City, NY (Susan B. Boland and Robert G. Vizza of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, SHERI S. ROMAN, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered June 20, 2019. The order, insofar as appealed from, granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiffs’ cross motion pursuant to CPLR 3025(b) for leave to amend their bill of particulars.

ORDERED that the order is affirmed insofar as appealed from, with costs.

After the plaintiff Angela DeCaprariis–Salerno allegedly tripped and fell on a height differential between two uneven concrete panels in the defendant's exterior parking lot, she, and her husband suing derivatively, commenced this action against the defendant. In an order entered June 20, 2019, the Supreme Court, inter alia, granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiffs’ cross motion pursuant to CPLR 3025(b) for leave to amend their bill of particulars. The plaintiffs appeal.

Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for a defect within the scope of the law unless it has received prior written notice of the defect 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 ). There are two "recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality" ( Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ). The affirmative act exception " ‘is limited to work by the [municipality] that immediately results in the existence of a dangerous condition’ " ( id. at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873, quoting Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [internal quotation marks and emphasis omitted]).

"[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, 214...