Masotto v. Vill. of Lindenhurst

• Decision Date: 14 November 2012
• Citation: Masotto v. Vill. of Lindenhurst, 100 A.D.3d 718, 954 N.Y.S.2d 557, 2012 N.Y. Slip Op. 7641 (N.Y. App. Div. 2012)
• Parties: Linda MASOTTO, appellant, v. VILLAGE OF LINDENHURST, etc., respondent.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 718

954 N.Y.S.2d 557

2012 N.Y. Slip Op. 07641

Linda MASOTTO, appellant,

v.VILLAGE OF LINDENHURST, etc., respondent.

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

Nov. 14, 2012.

Kaplan & Kaplan, P.C., Melville, N.Y. (Susan R. Nudelman and Steven L. Kaplan of counsel), for appellant.

O'Connor, O'Connor, Hintz & Deveney, LLP (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Christine Gasser], of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) a judgment of the Supreme Court, Suffolk County (Gazzillo, J.), entered May 13, 2011, which, upon an order of the same court entered April 13, 2011, granting the defendant's motion for summary judgment dismissing the complaint, is in favor of the defendant and against her, dismissing the complaint, and (2) an order of the same court entered October 4, 2011, which denied her motion for leave to renew and reargue her opposition to the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the appeal from so much of the order entered October 4, 2011, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed; and it is further,

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the order entered October 4, 2011, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant.

The appeal from so much of the order entered October 4, 2011, as denied that branch of the plaintiff's motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument.

On December 24, 2008, the plaintiff allegedly was injured when she slipped and fell in a municipal parking lot owned by the defendant. At the time of the plaintiff's fall, a prior written notice law was in effect ( seeVillage Law § 4–402[g]; Code of the Village of Lindenhurst §§ 116–1, 6–628).

“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;Hanover Ins. Co. v. Town of Pawling, 94 A.D.3d 1055, 1056, 943 N.Y.S.2d 152;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, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a defect which comes within the ambit of the law unlessit has received written notice of the alleged defect or dangerous condition, or an exception to the written notice requirement applies ( see Cuebas v. City of Yonkers, 97 A.D.3d 779, 780, 948 N.Y.S.2d 688;Braver v. Village of Cedarhurst, 94 A.D.3d 933, 934, 942 N.Y.S.2d 178). “Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” ( Miller v. Village of East Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171).

Here, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of the frozen snow plow track upon which the plaintiff allegedly slipped and fell, as required by section 116–1 of the Code of the Village of Lindenhurst, and that it did not create the dangerous condition through an...