Pennamen v. Town of Babylon

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: WILLIAM F. MASTRO
• Decision Date: 19 July 2011
• Docket Number: 2010-07376,Index No. 7921/08
• Citation: Pennamen v. Town of Babylon, 2010-07376, Index No. 7921/08 (N.Y. App. Div. Jul 19, 2011)
• Parties: Richard Pennamen, respondent, v. Town of Babylon, appellant.

2011 NY Slip Op 06023

Richard Pennamen, respondent, v. Town of Babylon, appellant.

2010-07376

Index No. 7921/08

SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

Decided on July 19, 2011

WILLIAM F. MASTRO, J.P.

ANITA R. FLORIO

ARIEL E. BELEN

CHERYL E. CHAMBERS, JJ.

Paul J. Margiotta, Town Attorney, Lindenhurst, N.Y. (Donna M. Somma and Allen E. Huggins of counsel), for appellant.

Lite & Russell, West Islip, N.Y. (Frank S. Russell of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Mayer, J.), dated June 18, 2010, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly tripped over a bent and defective storm drain grate located in the roadway at the end of his mother's driveway while he was carrying bags of yard debris to be placed at the curb for pick-up. He commenced this action against the defendant, Town of Babylon, alleging that he sustained personal injuries. The Town moved for summary judgment dismissing the complaint, contending that it lacked prior written notice of the alleged defective condition. The Supreme Court denied the Town's motion. We affirm.

Where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries arising from a defective roadway condition unless it has received prior written notice of the dangerous condition or an exception to the prior written notice requirement applies (see De La Reguera v City of Mount Vernon, 74 AD3d 1127; Lopez v G & J Rudolph Inc., 20 AD3d 511, 512). The Court of Appeals has recognized only two exceptions to the statutory prior written notice requirement, namely, where the municipality created the defect or hazard through an affirmative act of negligence or where a special use confers a benefit upon the locality (see Amabile v City of Buffalo, 93 NY2d 471, 474; Loughlin v Town of N. Hempstead, 84 AD3d 1035).

Here, the Town met its burden of establishing that it did not receive prior written notice of the alleged defective condition, thereby shifting to the plaintiff the burden of demonstrating that a triable issue of fact existed either in that regard or as to whether one of the Amabile exceptions applied (see Groninger v Village of Mamaroneck, 17 NY3d 125; Yarborough v City of New York, 10 NY3d 726, 728; Rochford v City of Yonkers, 12 AD3d 433). However, the Supreme Court correctly determined that, in opposition, the plaintiff raised a triable issue of fact as to whether theTown created the defective condition within the meaning of the exception, based on the affirmative negligence of the...