Spanos v. Town of Clarkstown

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: DANIEL D. ANGIOLILLO
• Citation: Spanos v. Town of Clarkstown, 916 N.Y.S.2d 181, 81 A.D.3d 711 (N.Y. App. Div. 2011)
• Decision Date: 08 February 2011
• Parties: Michael SPANOS, respondent, v. TOWN OF CLARKSTOWN, appellant.

916 N.Y.S.2d 181

81 A.D.3d 711

Michael SPANOS, respondent,

v.TOWN OF CLARKSTOWN, appellant.

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

Feb. 8, 2011.

MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Harold Y. MacCartney, Jr., and Catherine Friesen of counsel), for appellant.

H. Bruce Fischer, P.C., New York, N.Y., for respondent.

DANIEL D. ANGIOLILLO, J.P., ARIEL E. BELEN, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Rockland County (Jamieson, J.), entered July 13, 2010, which granted the plaintiff's motion to reinstate the note of issue and restore the action to the trial calendar and, in effect, denied its cross motion for summary judgment dismissing the complaint.

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

The plaintiff alleges that he tripped and fell over a pothole on New Valley Road in the defendant, Town of Clarkstown, sustaining injuries. He commenced this timely action against the defendant, issue was joined, and discovery completed. However, after the note of issue was filed, the action was marked off the calendar. Thereafter, the plaintiff moved to reinstate the note of issue and restore the action to the trial calendar, and the defendant opposed, arguing that the action lacked merit, as it had no prior written notice of the subject pothole. The defendant also cross-moved for summary judgment dismissing the complaint on that ground.

The Supreme Court granted the plaintiff's motion and, in effect, denied the defendant's cross motion, finding that the defendant's own motion papers raised a triable issue of fact as to the adequacy of the plaintiff's claim and the defendant's entitlement to summary judgment. Specifically, the Supreme Court found that an affidavit of a Town employee which the defendant submitted in its motion papers raised a question of fact as to the applicability of the affirmative negligence exception to the prior written notice requirement, inasmuch as the employee averred that two months before the plaintiff's accident, the defendant had repaired the subject roadway. The defendant appeals.

The defendant established its prima facie entitlement to judgment as a matter of law by submitting the affidavit of its Deputy Town Clerk, wherein she stated that her search of the Town's records revealed no prior written notice of any hazardous condition in the roadway where the accident occurred ( see Town Law § 65-a[1]; Town Code of the Town of Clarkstown former§ 188-1[A]; Pagano v. Town of Smithtown, 74 A.D.3d 1304, 904 N.Y.S.2d 729; LiFrieri v. Town of Smithtown, 72 A.D.3d 750, 752, 898 N.Y.S.2d 629; Scafidi v. Town of Islip, 34 A.D.3d 669, 824 N.Y.S.2d 410; see also Gorman v. Town of Huntington, 12 N.Y.3d 275, 279, 879 N.Y.S.2d 379, 907 N.E.2d 292). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, a verbal complaint reduced to writing by a municipality does not constitute prior written notice ( see McCarthy v. City of White Plains, 54 A.D.3d 828, 829-830, 863 N.Y.S.2d 500; Akcelik v. Town of Islip, 38 A.D.3d 483, 831 N.Y.S.2d 491; Dalton v. City of Saratoga Springs, 12 A.D.3d 899, 901, 784 N.Y.S.2d 702; Cenname v. Town of Smithtown, 303...