Hanover Ins. Co. v. Town of Pawling

• Citation: 943 N.Y.S.2d 152,94 A.D.3d 1055,2012 N.Y. Slip Op. 03142
• Parties: HANOVER INSURANCE COMPANY, as subrogee of Sherwood Modular Concepts, respondent, v. TOWN OF PAWLING, appellant.
• Decision Date: 24 April 2012
• Court: New York Supreme Court — Appellate Division

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.

[943 N.Y.S.2d 153]

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.

[94 A.D.3d 1055] 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, [94 A.D.3d 1056] 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]...