Grady v. Town of Hempstead

• Decision Date: 31 January 2024
• Citation: Grady v. Town of Hempstead, 204 N.Y.S.3d 542, 223 A.D.3d 885 (N.Y. App. Div. 2024)
• Parties: Judith A. GRADY, et al., appellants, v. TOWN OF HEMPSTEAD, defendant, County of Nassau, respondent.
• Court: New York Supreme Court — Appellate Division

204 N.Y.S.3d 542

223 A.D.3d 885

Judith A. GRADY, et al., appellants,

v.TOWN OF HEMPSTEAD, defendant,County of Nassau, respondent.

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

Submitted—October 16, 2023

January 31, 2024

Dell & Dean, PLLC (Joseph G. Dell and Mischel & Horn, P.C., New York, NY [Scott T. Horn and Liss M. Mendez], of counsel), for appellants.

Thomas A. Adams, County Attorney, Mineola, NY (Robert F. Van der Waag and Jackie L. Gross of counsel), for respondent.

ANGELA G. IANNACCI, J.P., WILLIAM G. FORD, HELEN VOUTSINAS, LOURDES M. VENTURA, 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 (Antonio I. Brandveen, J.), entered April 21, 2020. The order, insofar as appealed from, granted that branch of the motion of the defendant County of Nassau which was for summary judgment dismissing the amended complaint insofar as asserted against it.

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

The plaintiff Judith A. Grady (hereinafter the injured plaintiff), and her husband suing derivatively, commenced this action against the defendant County of Nassau, and another defendant, inter alia, to recover damages for personal injuries that the injured plaintiff allegedly sustained when she tripped and fell on a raised portion of sidewalk located near her place of employment in Hempstead. The plaintiffs alleged, among other things, that the County negligently maintained the sidewalk and affirmatively created the alleged defect.

Following the completion of discovery, the County moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against it on the ground that it did not receive prior written notice of the alleged defect pursuant to Nassau County Administrative Code § 12–4.0(e). In an order entered April 21, 2020, the Supreme Court, inter alia, granted that branch of the County’s motion which was for summary judgment dismissing the amended complaint insofar as asserted against it. The plaintiffs appeal.

[1–4] "When a municipality has adopted a prior written notice law, the municipality ‘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’ " (Schaum v. City of New York, 216 A.D.3d 691, 691, 187 N.Y.S.3d 108, quoting Sanon v. MTA Long Is. R.R., 203 A.D.3d 773, 775, 164 N.Y.S.3d 175; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104). "Where such a local law is in effect, ‘[p]rior written notice of a defective condition is a condition precedent to maintaining an action against a municipality’ " (Schaum v. City of New York, 216 A.D.3d at 691, 187 N.Y.S.3d 108, quoting Schiller v. Town of Ramapo, 202 A.D.3d 1022, 1022, 164 N.Y.S.3d 146). "To be entitled to summary judgment, the municipality must first establish that it lacked prior written notice of the alleged defect" (Schaum v. City of New York, 216 A.D.3d at 692, 187 N.Y.S.3d 108; see Smith v. City of New York, 210 A.D.3d 53, 69, 175 N.Y.S.3d 529). Upon that showing, " ‘the burden shifts to the plaintiff to demonstrate the applicability of one of 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’ " (Smith v. City of New York, 210 A.D.3d at 62, 175 N.Y.S.3d 529, quoting Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873; see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129–130, 927 N.Y.S.2d 304, 950 N.E.2d 908).

[5] Here, the County established, prima facie, that it did not receive prior written notice of the alleged defect by submitting, among other things, an...