Factor v. Town of Islip

• Decision Date: 23 December 2015
• Citation: 22 N.Y.S.3d 230,134 A.D.3d 984
• Parties: Lisa FACTOR, respondent, v. TOWN OF ISLIP, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

134 A.D.3d 984

22 N.Y.S.3d 230

Lisa FACTOR, respondent,

v.TOWN OF ISLIP, appellant, et al., defendant.

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

Dec. 23, 2015.

William D. Wexler, North Babylon, N.Y., for appellant.

Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

In an action to recover damages for personal injuries, the defendant Town of Islip appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Santorelli, J.), dated January 5, 2015, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Town of Islip for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

On June 26, 2010, the plaintiff allegedly sustained personal injuries when she tripped and fell on a sidewalk on Main Street, in the defendant Town of Islip. The accident occurred in front of Tellers Restaurant (hereinafter Tellers). Prior to the accident, in June 2009, a letter was sent to the Town Supervisor by a woman whose husband allegedly had tripped and fallen over a raised portion of the sidewalk on Main Street near Tellers. With respect to that incident, a Town accident/incident report was eventually forwarded to the Town Safety Officer with a copy to the Town Attorney. Subsequently, the Town Clerk received a notice of claim that another person had tripped over a raised sidewalk flag on Main Street, near Tellers, on August 4, 2009. According to this notice of claim, the defect was located approximately 86 feet from the flagpole located at the Islip Veterans Memorial Park.

The plaintiff filed a notice of claim advising the Town that she fell due to an alleged uneven paver located where the sidewalk met "a certain brick/installed median between said sidewalk and the north-side curb" in front of Tellers. She clarified that the defect was located 126 feet southwest of the same flagpole referenced in the August 4, 2009, notice of claim. Thereafter, the plaintiff commenced this action against, among others, the Town, to recover damages for her personal injuries.

The Town moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Town argued that it did not have prior written notice of the subject defect. The Supreme Court, inter alia, denied the Town's motion, and the Town appeals from so much of the order as denied its motion.

"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 [internal quotation marks omitted]; see Poirier v. City of Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555, 648 N.E.2d 1318 ; Abano v. Suffolk County Community Coll., 66 A.D.3d 719, 719, 887 N.Y.S.2d 200 ). Not "every written complaint to a municipal agency necessarily satisfies the strict requirements of prior written notice" (Gorman v. Town of Huntington, 12 N.Y.3d 275, 279, 879 N.Y.S.2d 379, 907 N.E.2d 292 ).

Once a municipality establishes that it lacked prior written notice of an alleged defect, the burden shifts to the plaintiff to demonstrate that a question of fact exists as to one of the exceptions to the prior written notice requirement, either that the municipality affirmatively created the alleged hazardous condition or caused the hazardous condition to occur by the special use of the area in question (see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 127–128, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Hanover Ins. Co. v. Town of Pawling, 94 A.D.3d 1055, 1056, 943 N.Y.S.2d 152 ).

The Town enacted an ordinance which provides, in relevant part, that no civil action shall be maintained against it for injuries sustained by reason of a defective or dangerous condition of a sidewalk unless prior written notice of such condition was actually given to the Town Clerk or the Commissioner of Public Works, and the Town failed to repair it within a reasonable time thereafter (see Town of Islip Code § 47A–3[A]; see also Town Law § 65–a ; Delaney v. Town of Islip, 63 A.D.3d 658, 659, 880 N.Y.S.2d 190 ; Nixdorf v. East Islip School Dist., 276 A.D.2d 759, 759, 715 N.Y.S.2d 432 ; Tramontano v. County of Suffolk, 239 A.D.2d 407, 407, 658 N.Y.S.2d 342 ).

Here, the Town established its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the deposition testimony of the executive assistant to the Town Clerk (hereinafter the assistant) who was in charge of maintaining and searching for notices of claim or defects...