De La Reguera v. City of Mount Vernon

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Citation: De La Reguera v. City of Mount Vernon, 904 N.Y.S.2d 108, 74 A.D.3d 1127 (N.Y. App. Div. 2010)
• Decision Date: 22 June 2010
• Parties: Mercedes DE LA REGUERA, respondent, v. CITY OF MOUNT VERNON, appellant.

904 N.Y.S.2d 108

74 A.D.3d 1127

Mercedes DE LA REGUERA, respondent,

v.CITY OF MOUNT VERNON, appellant.

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

June 22, 2010.

Loretta J. Hottinger, Corporation Counsel, Mount Vernon, N.Y. (Hina Sherwani and Joana H. Aggrey of counsel), for appellant.

Abraham, Lerner & Arnold, LLP, New York, N.Y. (Charles M. Arnold of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Smith J.), dated May 20, 2009, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

On August 30, 2006, the plaintiff allegedly was injured when she tripped on a pothole in the "permit only" area of a parking lot owned by the defendant, the City of Mount Vernon. The plaintiff possessed a City-issued permit allowing her to park in the "permit only" parking spaces within the parking lot, for which she paid a fee. The plaintiff commenced this action against the City and, thereafter, the City moved for summary judgment dismissing the complaint on the ground that it had not received prior written notice of the alleged defect, as required by the City's prior written notice law ( see Charter of the City of Mount Vernon § 265). The Supreme Court denied the motion. We reverse.

"Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained roadway unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies" ( Griesbeck v. County of Suffolk, 44 A.D.3d 618, 619, 843 N.Y.S.2d 162). The only recognized exceptions to the prior written notice requirement involve situations in which either the municipality created the defect through an affirmative act of negligence, or a "special use" confers a special benefit upon the municipality ( see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873; Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).

The City established its prima facia entitlement to judgment as a matter of law by presenting evidence that it had not received prior written...