Godino v. Kipel Assocs., Inc.
| Decision Date | 08 May 2013 |
| Citation | 106 A.D.3d 777,2013 N.Y. Slip Op. 03300,965 N.Y.S.2d 155 |
| Parties | Grazia GODINO, et al., appellants, v. KIPEL ASSOCIATES, INC., et al., defendants, County of Nassau, respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Walsh Markus McDougal & DeBellis, LLP, Garden City, N.Y. (John R. Yetman of counsel), for appellants.
John Ciampoli, County Attorney, Mineola, N.Y. (David A. Tauster of counsel), for respondent.
RANDALL T. ENG, P.J., REINALDO E. RIVERA, DANIEL D. ANGIOLILLO, and RUTH C. BALKIN, JJ.
In a consolidated 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, Nassau County (Parga, J.), entered March 20, 2012, as granted that branch of the motion of the defendant County of Nassau which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The County of Nassau established its prima facie entitlement to judgment as a matter of law by submitting proof that it did not have prior written notice of the allegedly dangerous condition of a certain sidewalk over one of its drainage vaults ( see Boggi v. City of White Plains, 97 A.D.3d 773, 773–774, 948 N.Y.S.2d 562;Pennamen v. Town of Babylon, 86 A.D.3d 599, 599, 927 N.Y.S.2d 164). In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the County actually had prior written notice of the defective condition. The plaintiffs also failed to raise a triable issue of fact as to whether the County created the defective condition through affirmative negligence ( see Crawford v. City of New York, 98 A.D.3d 935, 937, 950 N.Y.S.2d 743;Weinberg v. City of New York, 96 A.D.3d 736, 737, 945 N.Y.S.2d 758;Stern v. Incorporated Vil. of Flower Hill, 278 A.D.2d 225, 226, 716 N.Y.S.2d 918), or as to the applicability of the “special use” exception to the prior written notice requirement ( see Poirier v. City of Schenectady, 85 N.Y.2d 310, 314–315, 624 N.Y.S.2d 555, 648 N.E.2d 1318;Ramos v. City of New York, 55 A.D.3d 896, 897, 866 N.Y.S.2d 737;Smith v. City of Syracuse, 298 A.D.2d 842, 842–843, 747 N.Y.S.2d 876;Braunstein v. County of Nassau, 294 A.D.2d 323, 323, 741 N.Y.S.2d 565;ITT Hartford Ins. Co. v. Village of Ossining, 257 A.D.2d 606, 607, 684 N.Y.S.2d 258;Barnes v. City of Mt. Vernon, 245 A.D.2d 407, 408, 666 N.Y.S.2d 206;Fazio v. Town of Mamaroneck, ...
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