Hanover Ins. Co. v. Town of Pawling

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Citation: Hanover Ins. Co. v. Town of Pawling, 94 A.D.3d 1055, 943 N.Y.S.2d 152, 2012 N.Y. Slip Op. 3142 (N.Y. App. Div. 2012)
• Decision Date: 24 April 2012
• Parties: HANOVER INSURANCE COMPANY, as subrogee of Sherwood Modular Concepts, respondent, v. TOWN OF PAWLING, appellant.

2012 N.Y. Slip Op. 03142

94 A.D.3d 1055

943 N.Y.S.2d 152

HANOVER INSURANCE COMPANY, as subrogee of Sherwood Modular Concepts, respondent,

v.TOWN OF PAWLING, appellant.

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

April 24, 2012.

Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd PLLC, New Windsor, N.Y. (Stephen J. Gaba of counsel), for appellant.

Methfessel & Werbel, New York, N.Y. (Fredric P. Gallin of counsel), for respondent.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, and PLUMMER E. LOTT, JJ.

In a subrogation action to recover damages for injury to property, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated June 16, 2010, as denied its cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendant's cross motion for summary judgment dismissing the complaint is granted.

“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; 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; Katsoudas v. City of New York, 29 A.D.3d 740, 741, 815 N.Y.S.2d 243). Where such a municipality establishes that it lacked prior written notice of an alleged defect, the burden shifts to the plaintiff to demonstrate the applicability of one of the two recognized exceptions to the prior written notice requirement ( see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873; Kiszenik v. Town of Huntington, 70 A.D.3d 1007, 1007–1008, 895 N.Y.S.2d 208). “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 at 1107, 926 N.Y.S.2d 309; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104; Filaski–Fitzgerald v. Town of Huntington, 18 A.D.3d 603, 604, 795 N.Y.S.2d 614). “Moreover, the affirmative negligence exception ... [is] limited to work by the [municipality] that immediately results in the existence of a dangerous condition” ( Forbes v. City of New York, 85 A.D.3d at 1107, 926 N.Y.S.2d 309 [internal quotation marks omitted]; see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873; Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270; Bielecki v. City of New York, 14 A.D.3d 301, 301, 788 N.Y.S.2d 67).

The defendant, the Town of Pawling, has adopted an applicable prior written notice law. The Code of the Town of Pawling provides, in pertinent part, that

“[n]o civil action shall be maintained against the Town of Pawling ... for damages or injuries to person or...