Healy v. Village of Patchogue

Appellate Division of the Supreme Court of New York

Healy v. Village of Patchogue

28 A.D.3d 519, 813 N.Y.S.2d 499

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 11, 2006

StatusPublished

Cited by2 cases

This text of 28 A.D.3d 519 (Healy v. Village of Patchogue) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Healy v. Village of Patchogue, 28 A.D.3d 519, 813 N.Y.S.2d 499 (N.Y. Ct. App. 2006).

Pincite

Opinion

In an action to recover damages for personal injuries, the defendant Village of Patchogue appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated February 22, 2005, as, upon reargument, adhered to a prior determination in an order dated September 20, 2004, denying its motion for summary judgment dismissing the complaint insofar as asserted against it and granting the plaintiffs cross motion to strike its answer to the extent of directing it to produce certain records and incident reports.

Ordered that the order dated February 22, 2005 is reversed insofar as appealed from, on the law, with costs, upon reargument, the motion for summary judgment is granted, the complaint is dismissed in its entirety, the cross motion is denied as academic, and the order dated September 20, 2004 is modified accordingly.

Pursuant to Village Law § 6-628, a village may be hable for personal injuries caused by a dangerous condition on its streets if the village has received prior written notice of the condition (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Katz v City of New York, 87 NY2d 241, 243 [1995]; Farrago v Great Atl. & Pac. Tea Co., Inc., 17 AD3d 631, 632 [2005]). The Court of Appeals has recognized only two exceptions to the prior written notice rule, namely, where the village created the defect through an affirmative act of negligence, or where a “special use” confers a special benefit to the village (see Amabile v City of Buffalo, supra at 474).

Here, on its motion for summary judgment, the defendant Village of Patchogue established its entitlement to judgment as a matter of law. The deposition testimony of the Village’s Superintendent of Public Works, as well as the affidavits of the Village’s Clerk and Highway Foreman, established that the Village did not receive prior written notice of the allegedly dangerous condition in the roadway which allegedly caused the plaintiffs injuries (see Rochford v City of Yonkers, 12 AD3d 433 [2004]; [520]*520Butts v Village of Sag Harbor, 260 AD2d 419 [1999]). Since, in response, the plaintiff failed to raise a triable issue of fact as to whether the Village received prior written notice of that condition, or as to whether one of the two exceptions to the prior written notice rule applied, the Supreme Court, upon reargument, should have granted the motion (see Amabile v City of Buffalo, supra at 474; Albright v City of New York, 25 AD3d 577 [2006]; Lopez v G&J Rudolph Inc., 20 AD3d 511 [2005]; Ganzenmuller v Incorporated Vil. of Port Jefferson, 18 AD3d 703 [2005]; Farrago v Great Atl. & Pac. Tea Co., Inc., supra at 632).

The Village’s remaining contentions are academic in light of our determination. Krausman, J.P., Mastro, Fisher and Covello, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

In an action to recover damages for personal injuries, the defendant Village of Patchogue appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated February 22, 2005, as, upon reargument, adhered to a prior determination in an order dated September 20, 2004, denying its motion for summary judgment dismissing the complaint insofar as asserted against it and granting the plaintiffs cross motion to strike its answer to the extent of directing it to produce certain records and incident reports.

Ordered that the order dated February 22, 2005 is reversed insofar as appealed from, on the law, with costs, upon reargument, the motion for summary judgment is granted, the complaint is dismissed in its entirety, the cross motion is denied as academic, and the order dated September 20, 2004 is modified accordingly.

Pursuant to Village Law § 6-628, a village may be hable for personal injuries caused by a dangerous condition on its streets if the village has received prior written notice of the condition (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Katz v City of New York, 87 NY2d 241, 243 [1995]; Farrago v Great Atl. & Pac. Tea Co., Inc., 17 AD3d 631, 632 [2005]). The Court of Appeals has recognized only two exceptions to the prior written notice rule, namely, where the village created the defect through an affirmative act of negligence, or where a “special use” confers a special benefit to the village (see Amabile v City of Buffalo, supra at 474).

Here, on its motion for summary judgment, the defendant Village of Patchogue established its entitlement to judgment as a matter of law. The deposition testimony of the Village’s Superintendent of Public Works, as well as the affidavits of the Village’s Clerk and Highway Foreman, established that the Village did not receive prior written notice of the allegedly dangerous condition in the roadway which allegedly caused the plaintiffs injuries (see Rochford v City of Yonkers, 12 AD3d 433 [2004]; [520]*520Butts v Village of Sag Harbor, 260 AD2d 419 [1999]). Since, in response, the plaintiff failed to raise a triable issue of fact as to whether the Village received prior written notice of that condition, or as to whether one of the two exceptions to the prior written notice rule applied, the Supreme Court, upon reargument, should have granted the motion (see Amabile v City of Buffalo, supra at 474; Albright v City of New York, 25 AD3d 577 [2006]; Lopez v G&J Rudolph Inc., 20 AD3d 511 [2005]; Ganzenmuller v Incorporated Vil. of Port Jefferson, 18 AD3d 703 [2005]; Farrago v Great Atl. & Pac. Tea Co., Inc., supra at 632).

The Village’s remaining contentions are academic in light of our determination. Krausman, J.P., Mastro, Fisher and Covello, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

28 A.D.3d 519, 813 N.Y.S.2d 499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/healy-v-village-of-patchogue-nyappdiv-2006.

Opinion

Related

Cite This Page — Counsel Stack