Wilson v. Inc. Vill. of Freeport

• Decision Date: 25 January 2023
• Docket Number: 2019–14449,Index No. 606167/18
• Citation: 212 A.D.3d 870,182 N.Y.S.3d 225
• Parties: Valentine WILSON, appellant, v. INCORPORATED VILLAGE OF FREEPORT, respondent.
• Court: New York Supreme Court — Appellate Division

212 A.D.3d 870
182 N.Y.S.3d 225

Valentine WILSON, appellant,
v.
INCORPORATED VILLAGE OF FREEPORT, respondent.

2019–14449
Index No. 606167/18

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

Argued—November 28, 2022
January 25, 2023

182 N.Y.S.3d 226

Dell & Dean, PLLC (Mischel & Horn, P.C., New York, NY [Scott T. Horn, Christen Giannaros, and Nicholas S. Bruno], of counsel), for appellant.

Gallo Vitucci Klar LLP, Woodbury, NY (Marc Pottak and Nicholas Vevante of counsel), for respondent.

MARK C. DILLON, J.P., JOSEPH A. ZAYAS, DEBORAH A. DOWLING, LILLIAN WAN, JJ.

DECISION & ORDER

212 A.D.3d 870

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), entered December 18, 2019. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when she tripped and fell on broken, cracked, uneven, raised, and missing asphalt near the exit of Northeast Park in the Incorporated Village of Freeport. The plaintiff commenced this action against the Village to recover damages for her injuries, alleging, among other things, that the Village negligently maintained the premises and that it affirmatively created the dangerous

182 N.Y.S.3d 227

condition. The Village moved for summary judgment dismissing the complaint on the ground that it had no prior written notice of the alleged defect, as required by the Code of the Village of Freeport § 27–3. In an order entered December 18, 2019, the Supreme Court granted the Village's motion, and the plaintiff appeals.

212 A.D.3d 871

"A municipality that has adopted a prior written notice law cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies" ( Barnes v. Incorporated Vil. of Port Jefferson, 120 A.D.3d 528, 529, 990 N.Y.S.2d 841 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Boorman v. Town of Tuxedo, 204 A.D.3d 742, 743, 164 N.Y.S.3d 501 ). One such exception exists where the municipality affirmatively created the defect through an act of negligence (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 at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ). The affirmative negligence exception is limited to work done by a municipality "that immediately results in the existence of a dangerous condition" ( Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d...