Oliveri v. Vill. of Greenport

• Decision Date: 20 March 2012
• Citation: Oliveri v. Vill. of Greenport, 93 A.D.3d 773, 940 N.Y.S.2d 675, 2012 N.Y. Slip Op. 2092 (N.Y. App. Div. 2012)
• Parties: Angela OLIVERI, respondent, v. VILLAGE OF GREENPORT, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02092

93 A.D.3d 773

940 N.Y.S.2d 675

Angela OLIVERI, respondent,

v.VILLAGE OF GREENPORT, appellant.

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

March 20, 2012.

Devitt Spellman Barrett, LLP, Smithtown, N.Y. (John M. Denby of counsel), for appellant.

Law Offices of Solomon & Herrera, PLLC, Levittown, N.Y. (Daniel J. Herrera and Susan A. Rubin of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated April 4, 2011, as denied its 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 motion for summary judgment dismissing the complaint is granted.

The plaintiff allegedly sustained injuries when she tripped on a raised tree grate located in a strip of cobblestone between a sidewalk and a roadway in the Village of Greenport. The plaintiff then commenced this action against the Village to recover damages for personal injuries. The Village moved for summary judgment dismissing the complaint, contending, among other things, that it did not receive prior written notice of the alleged defect, as required by Village Law § 6–628. In the order appealed from, the Supreme Court, among other things, denied the Village's motion for summary judgment.

The Village established its prima facie entitlement to judgment as a matter of law by submitting evidence that it lacked prior written notice of the allegedly defective condition, as required by Village Law § 6–628 ( see Richards v. Incorporated Vil. of Rockville Ctr., 80 A.D.3d 594, 594, 914 N.Y.S.2d 643; Krausch v. Incorporated Vil. of Shoreham, 87 A.D.3d 715, 716, 928 N.Y.S.2d 769). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Village received prior written notice of that condition, or as to whether one of the exceptions to the prior written notice requirement applied ( 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, 1008, 895 N.Y.S.2d 208; Healy v. Village of Patchogue, 28 A.D.3d 519, 520, 813 N.Y.S.2d 499). Contrary to the plaintiff's contention, the prior written notice provision of Village...