Mattioli v. Town of Greece

101 A.D.3d 1752, 955 N.Y.2d 914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 2012
• Status: Published

Opinion

Memorandum: Plaintiff commenced this action seeking damages for losses she sustained when her real and personal property was damaged in a flood that allegedly occurred when a retention pond overflowed after a rainstorm in 2008. Defendant appeals from a judgment and order that, inter alia, denied that part of its motion for summary judgment dismissing the complaint. Contrary to defendant’s contention, Supreme Court properly denied that part of the motion. Although defendant met its initial burden on the motion by submitting evidence establishing that it had not received prior written notice of the alleged defect as required by defendant’s Town Code (see generally Davison v City of Buffalo, 96 AD3d 1516, 1518 [2012]), plaintiff raised a triable issue of fact whether defendant had received such notice (see generally Cruzado v City of New York, 80 AD3d 537, 538 [2011]). In addition, plaintiff raised “a triable issue of fact concerning the applicability of [an] exception to the prior written notice requirement, i.e., whether [defendant] created the allegedly dangerous condition ‘through an affirmative act of negligence’ ” (Smith v City of Syracuse, 298 AD2d 842, 842-843 [2002]; see Jannicelli v City of Schenectady, 90 AD3d 1206, 1207 [2011]). Present — Scudder, P.J., Peradotto, Lindley and Whalen, JJ.