Filaski-Fitzgerald v. Town of Huntington

• Court: New York Supreme Court — Appellate Division
• Citation: Filaski-Fitzgerald v. Town of Huntington, 18 AD3d 603, 795 NYS2d 614, 2005 NY Slip Op 3994 (N.Y. App. Div. 2005)
• Decision Date: 16 May 2005
• Docket Number: 2003-10260.
• Parties: DENISE FILASKI-FITZGERALD et al., Appellants, v. TOWN OF HUNTINGTON, Respondent, et al., Defendant.

18 A.D.3d 603

795 N.Y.S.2d 614

2005 NY Slip Op 03994

DENISE FILASKI-FITZGERALD et al., Appellants, v. TOWN OF HUNTINGTON, Respondent, et al., Defendant.

2003-10260.

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

May 16, 2005.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Molia, J.), dated

October 10, 2003, as granted the motion of the defendant Town of Huntington for summary judgment dismissing the complaint insofar as asserted against it.

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

Huntington Town Code, article V, § 173-18, requires that prior written notice of a sidewalk or street condition be given to the Huntington Town Clerk or Superintendent of Highways before an action may be maintained against the Town of Huntington to recover damages for personal injuries. The only exceptions to such requirement which have been recognized by the Court of Appeals are where the municipality affirmatively created the defect, or where a special use confers a special benefit on the municipality (see Amabile v City of Buffalo, 93 NY2d 471, 473 [1999]).

Here it is undisputed that no prior written notice of the allegedly defective drainage grate where the injured plaintiff fell was given to the Town. Furthermore, contrary to the plaintiffs' contentions, they failed to demonstrate that the allegedly...