Marona v. Incorporated Village of Mamaroneck

• Decision Date: 11 April 1994
• Citation: Marona v. Incorporated Village of Mamaroneck, 609 N.Y.S.2d 938, 203 A.D.2d 337 (N.Y. App. Div. 1994)
• Parties: Florinda MARONA, et al., Appellants-Respondents, v. INCORPORATED VILLAGE OF MAMARONECK, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 938

609 N.Y.S.2d 938

203 A.D.2d 337

Florinda MARONA, et al., Appellants-Respondents, v. INCORPORATED VILLAGE OF MAMARONECK, Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

April 11, 1994.

Gary P. Field, Huntington, for appellants-respondents.

J. Russell Clune, P.C., Village Atty., Harrison (Richard D. Bentzen and Edward A. Frey, of counsel), for respondent-appellant.

Before BALLETTA, J.P., and ROSENBLATT, RITTER and ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiffs appeal from so much of an order of the Supreme Court, Westchester County (Ruskin, J.), entered May 20, 1992, as denied their cross motion for summary judgment dismissing the defendant's affirmative defense, and the defendant cross-appeals from so much of the same order as denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs or disbursements.

On June 30, 1989, the plaintiff, Florinda Marona, allegedly tripped and fell while walking across a center island median separating two lanes of motor vehicle traffic on Phillip Park Road in the Village of Mamaroneck (hereinafter the Village). It is alleged that the median, which was part of the roadway owned by the Village, was in a defective condition because the concrete curb surrounding it had a one-inch gap all the way around where it was joined with the macadam. The plaintiff allegedly caught her high heel in this one inch gap.

In its affirmative defense, the Village alleged lack of prior written notice as required by the Village Code. The Village then moved for summary judgment based on the undisputed fact that no prior written notice of the alleged defect was ever filed.

The plaintiffs opposed the motion and cross-moved for summary judgment seeking dismissal of the affirmative defense of lack of prior written notice. They argued that no prior written notice was required because the Village had created the dangerous condition, and because the Village derived a special benefit from revenues generated by parking meters installed around the center median. The Supreme Court denied the respective motions and we now affirm.

Compliance with local laws requiring prior written notice of a defect or dangerous condition on public ways is normally mandated in order to hold a municipal body liable for injuries to persons due to nonfeasance (see, Bryant v. City of Newburgh, 193 A.D.2d 773, 598 N.Y.S.2d 77). Exceptions to this requirement exist where the municipality has acted affirmatively to create the dangerous condition (see, Kiernan v. Thompson, 73 N.Y.2d 840, 537 N.Y.S.2d 122, 534 N.E.2d 39;...