O'Sullivan v. City of Long Beach

• Docket Number: 2021–00513,Index No. 602852/18
• Decision Date: 12 October 2022
• Citation: O'Sullivan v. City of Long Beach, 209 A.D.3d 757, 176 N.Y.S.3d 660 (N.Y. App. Div. 2022)
• Parties: Debra O'SULLIVAN, respondent, v. CITY OF LONG BEACH, appellant.
• Court: New York Supreme Court — Appellate Division

209 A.D.3d 757

176 N.Y.S.3d 660

Debra O'SULLIVAN, respondent,

v.CITY OF LONG BEACH, appellant.

2021–00513

Index No. 602852/18

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

Argued—May 13, 2022

October 12, 2022

Richard Berrios, Corporation Counsel, Long Beach, NY (Charles M. Geiger of counsel), for appellant.

Yudin & Yudin, PLLC, New York, NY (Ronald M. Yudin of counsel), for respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Helen Voutsinas, J.), entered January 20, 2021. The order denied the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action, alleging that she was injured when she slipped and fell on ice that had accumulated on a boardwalk owned and maintained by the defendant, City of Long Beach. The plaintiff alleged that the City plowed snow off the boardwalk and negligently piled it along the edges of the bike lane. The plaintiff alleged that these piles of snow melted and refroze, causing the icy condition in the area where she slipped and fell.

The City moved for summary judgment dismissing the complaint. In an order entered January 20, 2021, the Supreme Court denied the City's motion. The City appeals. We affirm.

"A municipality that has enacted a prior written notification law may avoid liability for a defect or hazardous condition that falls within the scope of the law if it can establish that it has not been notified in writing of the existence of the defect or hazard at a specific location" ( Torres v. Incorporated Vil. of Rockville Ctr., 195 A.D.3d 974, 975, 146 N.Y.S.3d 519 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ). "Such [prior written] notice is obviated where the plaintiff demonstrates that the municipality ‘created the defect or hazard through an affirmative act of negligence’ or that a ‘special use’ conferred a benefit on the municipality" ( Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 127–128, 927 N.Y.S.2d 304, 950 N.E.2d 908, quoting Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ).

Here, in moving for summary judgment dismissing the complaint, the City met its burden of establishing that it did not receive prior written notice of the icy condition, thereby shifting the burden to the plaintiff of demonstrating either that a triable issue of fact existed in that regard or that one of the Amabile exceptions applied (see Smith v. City of New York, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 WL 4361183, 2022 N.Y. Slip Op. 05226 [2d Dept.] ; see also Groninger v. Village of Mamaroneck, 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Torres v. Incorporated Vil. of Rockville Ctr., 195 A.D.3d at 975, 146 N.Y.S.3d 519 ; Lichtman v. Village of Kiryas Joel, 90 A.D.3d 1001, 1001, 935 N.Y.S.2d 331 ). The evidence submitted by the plaintiff in opposition to the City's motion, which included the plaintiff's own affidavit describing the "large piles" of snow in the area where she fell and the affidavit of an expert, was sufficient to raise a triable issue of fact as to...