Marciano v. Vill. of Rockville Ctr.

• Decision Date: 10 February 2016
• Citation: Marciano v. Vill. of Rockville Ctr., 136 A.D.3d 761, 24 N.Y.S.3d 520(Mem) (N.Y. App. Div. 2016)
• Parties: Meryl MARCIANO, appellant, v. VILLAGE OF ROCKVILLE CENTRE, respondent.
• Court: New York Supreme Court — Appellate Division

136 A.D.3d 761

24 N.Y.S.3d 520 (Mem)

Meryl MARCIANO, appellant,

v.VILLAGE OF ROCKVILLE CENTRE, respondent.

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

Feb. 10, 2016.

Matthew A. Sosnik (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac and Michael H. Zhu ], of counsel), for appellant.

Goldberg Segalla, LLP, Garden City, N.Y. (Brendan T. Fitzpatrick and William T. O'Connell of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), entered October 2, 2014, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect or a dangerous condition that comes within the ambit of the law unless it has received written notice of the alleged defect or dangerous condition prior to the occurrence of the subject accident, or an exception to the written notice requirement applies (see Poirier v. City of Schenectady, 85 N.Y.2d 310, 313, 624 N.Y.S.2d 555, 648 N.E.2d 1318 ; Agard v. City of White Plains, 127 A.D.3d 894, 895, 8 N.Y.S.3d 344 ; Moncrieffe v. City of White Plains, 115 A.D.3d 915, 916, 982 N.Y.S.2d 579 ; Cuebas v. City of Yonkers, 97 A.D.3d 779, 780, 948 N.Y.S.2d 688 ). "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 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Palka v. Village of Ossining, 120 A.D.3d 641, 642, 992 N.Y.S.2d 273 ).

Here, the defendant established, prima facie, that it did not have prior written notice of the alleged icy or uneven condition in the parking lot where the plaintiff slipped and fell (see Peretz v. Village of Great Neck Plaza, 130 A.D.3d 867, 869, 14 N.Y.S.3d 113 ; Agard v. City of White Plains, 127 A.D.3d 894, 895, 8 N.Y.S.3d 344 ; Palka v. Village of Ossining, 120 A.D.3d at 642, 992 N.Y.S.2d 273 ). Contrary to the plaintiff's contention, the defendant also established, prima facie, that it did not affirmatively create the alleged icy or uneven condition (see Lima v. Village of Garden City, 131 A.D.3d 947, 948, 16 N.Y.S.3d 249 ; Peretz v. Village of Great Neck Plaza, 130 A.D.3d at 869, 14 N.Y.S.3d 113 ; Barnes v. Incorporated Vil. of Port Jefferson, 120 A.D.3d 528, 529, 990 N.Y.S.2d 841 ; ...