Summary
The Appellate Division, Second Department, affirmed an order granting the Town of North Hempstead summary judgment in a personal-injury action arising from a trip-and-fall on an uneven sidewalk. The court held that the Town established the absence of prior written notice and that the plaintiffs failed to raise a triable issue regarding the affirmative negligence or special use exceptions.
Topics
Practice areas
Questions Presented
- Whether the Town established its prima facie entitlement to summary judgment by demonstrating that it lacked prior written notice of the alleged sidewalk defect.
- Whether plaintiffs raised a triable issue of fact showing that an exception to the prior written notice requirement applied, including affirmative municipal negligence or special use.
- Whether the Town was required, as part of its prima facie showing, to establish that it did not affirmatively create the alleged defect through negligence.
Holdings
- A municipality subject to a prior written notice statute cannot be held liable for a defect within the statute's scope unless it received prior written notice of the defect or a recognized exception applies.
- The Town established prima facie entitlement to summary judgment by submitting municipal affidavits showing that a records search revealed no prior written notice of the alleged defect.
- The Town was not required, in order to establish prima facie entitlement to summary judgment, to demonstrate that it did not create the alleged defect through an affirmative act of negligence.
- Plaintiffs failed to raise a triable issue of fact concerning the affirmative-negligence exception and did not argue that the special-use exception applied; summary judgment for the Town was therefore proper.
Key quotations
“Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for a defect within the scope of the law unless it has received prior written notice of the defect or an exception to the prior written notice requirement applies” ([*1])
“To be entitled to summary judgment, the municipality must first establish that it lacked prior written notice of the alleged defect. Once that showing is made, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality” ([*1])
“The affirmative negligence exception is limited to work done by a municipality 'that immediately results in the existence of a dangerous condition'” ([*1])
Factual background
On November 28, 2020, Yelena Sharbani allegedly tripped and fell on an uneven sidewalk in the Town of North Hempstead and sustained personal injuries. The Town submitted affidavits from municipal officials stating that a records search found no prior written notice of a defective condition at the location before the accident. Plaintiffs did not argue that the special-use exception applied and failed to produce evidence raising a triable issue concerning affirmative municipal negligence.
Procedural history
Yelena Sharbani and her husband commenced a personal-injury action in July 2021 after Sharbani allegedly tripped on an uneven sidewalk in the Town of North Hempstead. The Town moved for summary judgment based in part on the absence of prior written notice of the alleged defect. The Supreme Court, Nassau County, granted the motion, and the Appellate Division affirmed.