Gonzalez v. Town of Hempstead

• Decision Date: 21 January 2015
• Citation: Gonzalez v. Town of Hempstead, 2015 NY Slip Op 495, 2 N.Y.S.3d 527, 124 A.D.3d 719 (N.Y. App. Div. 2015)
• Parties: Orlando GONZALEZ, et al., respondents, v. TOWN OF HEMPSTEAD, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

124 A.D.3d 719

2 N.Y.S.3d 527

2015 N.Y. Slip Op. 00495

Orlando GONZALEZ, et al., respondents,

v.TOWN OF HEMPSTEAD, appellant, et al., defendants.

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

Jan. 21, 2015

Reversed. Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Randy S. Nissan of counsel), for appellant.

Hirsch, Britt & Mosé, Garden City, N.Y. (Susan Fagen Britt of counsel), for respondents.

RANDALL T. ENG, P.J., WILLIAM F. MASTRO, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, etc., the defendant Town of Hempstead appeals from so much of an order of the Supreme Court, Nassau County (Bruno, J.), entered April 19, 2013, as denied its cross 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 cross motion of the defendant Town of Hempstead for summary judgment dismissing the complaint and all cross claims insofar as asserted against it is granted.

On February 1, 2010, the plaintiff Orlando Gonzalez (hereinafter the injured plaintiff) allegedly sustained injuries when he tripped and fell on bolts protruding from a sidewalk in Franklin Square in the Town of Hempstead. The bolts allegedly were left in the ground after a bench that had been anchored to the sidewalk by those bolts was damaged during an automobile accident on December 31, 2009. The injured plaintiff, and his wife suing derivatively, commenced this action, inter alia, to recover damages for personal injuries against the Town, among others. Thereafter, the Town cross-moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. In an order entered April 19, 2013, the Supreme Court, inter alia, denied the Town's cross motion. The Town appeals from that portion of the order.

“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” ( Barnes v. Incorporated Vil. of Port Jefferson, 120 A.D.3d 528, 529, 990 N.Y.S.2d 841; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104). “The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property” ( Forbes v. City of New York, 85 A.D.3d 1106, 1107, 926 N.Y.S.2d 309). “Actual notice of the alleged hazardous condition does not override the statutory requirement of prior written notice of a sidewalk defect” ( Velho v. Village of Sleepy Hollow, 119 A.D.3d 551, 552, 987 N.Y.S.2d 879).

The Town established its prima facie...