Kiszenik v. Town of Huntington, 70 A.D.3d 1007 (N.Y. App. Div. 2010). · Go Syfert
Kiszenik v. Town of Huntington, 70 A.D.3d 1007 (N.Y. App. Div. 2010). Cases Citing This Book View Copy Cite
24 citation events (24 in the last 25 years) across 2 distinct courts.
Strongest positive: Tortorici v. City of New York (nyappdiv, 2015-09-02)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 15 distinct citers. How cited ↗
discussed Cited as authority (rule) Tortorici v. City of New York
N.Y. App. Div. · 2015 · confidence medium
A verbal or telephonic communication to a municipal body, even if reduced to writing, cannot satisfy the prior written notice requirement (see Gorman v Town of Huntington, 12 NY3d 275, 280 [2009]; Kapilevich v City of New York, 103 AD3d 548, 549 [2013]; Batts v City of New York, 93 AD3d 425, 426 [2012]; Spanos v Town of Clarkstown, 81 AD3d 711, 712 [2011]; Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]; McCarthy v City of White Plains, 54 AD3d 828, 829-830 [2008]).
discussed Cited as authority (rule) Wolin v. Town of North Hempstead
N.Y. App. Div. · 2015 · confidence medium
Contrary to the plaintiff’s contention, the various writings that were prepared by town employees in response to a verbal complaint did not satisfy the prior written notice requirement (see Spanos v Town of Clarkstown, 81 AD3d 711, 713 [2011]; Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]; McCarthy v City of White Plains, 54 AD3d 828, 829-830 [2008]).
cited Cited as authority (rule) Agard v. City of White Plains
N.Y. App. Div. · 2015 · confidence medium
Co. v Town of Pawling, 94 AD3d 1055 [2012]; Kiszenik v Town of Huntington, 70 AD3d 1007, 1007-1008 [2010]).
cited Cited as authority (rule) Lipari v. Town of Oyster Bay
N.Y. App. Div. · 2014 · confidence medium
Co. v Town of Pawling, 94 AD3d at 1056 ; Kiszenik v Town of Huntington, 70 AD3d 1007, 1007-1008 [2010]).
cited Cited as authority (rule) Lipari v. Town of Oyster Bay
N.Y. App. Div. · 2014 · confidence medium
Co. v Town of Pawling, 94 AD3d at 1056 ; Kiszenik v Town of Huntington, 70 AD3d 1007, 1007-1008 [2010]).
discussed Cited as authority (rule) Chirco v. City of Long Beach
N.Y. App. Div. · 2013 · confidence medium
The records of the City’s Police Department and Beach Maintenance Department did not raise a triable issue, since section 256A (1) requires the filing of written notice with the City’s Commissioner of Public Works (see Gorman v Town of Huntington, 12 NY3d at 279 ; Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]).
discussed Cited as authority (rule) Chirco v. City of Long Beach
N.Y. App. Div. · 2013 · confidence medium
The records of the City’s Police Department and Beach Maintenance Department did not raise a triable issue, since section 256A (1) requires the filing of written notice with the City’s Commissioner of Public Works (see Gorman v Town of Huntington, 12 NY3d at 279 ; Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]).
discussed Cited as authority (rule) Magee v. Town of Brookhaven
N.Y. App. Div. · 2012 · confidence medium
Constructive notice of a condition is insufficient to satisfy the requirement of prior written notice (see Town of Brookhaven Code § 84-1 [B]; Amabile v City of Buffalo, 93 NY2d at 475 ; Rosenblum v City of New York, 89 AD3d 439 [2011]; Tucker v City of New York, 84 AD3d 640, 645 [2011]; Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]; Groninger v Village of Mamaroneck, 67 AD3d 733 [2009], affd 17 NY3d 125 [2011]; McCarthy v City of White Plains, 54 AD3d 828, 830 [2008]).
discussed Cited as authority (rule) Hanover Insurance v. Town of Pawling
N.Y. App. Div. · 2012 · confidence medium
Where such a municipality establishes that it lacked prior written notice of an alleged defect, the burden shifts to the plaintiff to demonstrate the applicability of one of the two recognized exceptions to the prior written notice requirement (see Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Kiszenik v Town of Huntington, 70 AD3d 1007, 1007-1008 [2010]).
discussed Cited as authority (rule) Oliveri v. Village of Greenport
N.Y. App. Div. · 2012 · confidence medium
In opposition, 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 exceptions to the prior written notice requirement applied (see Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]; Healy v Village of Patchogue, 28 AD3d 519, 520 [2006]).
discussed Cited as authority (rule) Lichtman v. Village of Kiryas Joel
N.Y. App. Div. · 2011 · confidence medium
Thus, in order to defeat the Village’s motion, the plaintiffs were required to come forward with admissible evidence raising a triable issue of fact as to whether the Village either created or exacerbated the icy condition through its affirmative negligent acts, or whether a special use conferred a special benefit on the Village (see San Marco v Village/Town of Mount Kisco, 16 NY3d 111 [2010]; Petrillo v Town of Hempstead, 85 AD3d 996 [2011]; Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]).
discussed Cited as authority (rule) Vardoulias v. County of Nassau
N.Y. App. Div. · 2011 · confidence medium
The fact that the Nassau County Recreation and Parks Department received prior written notice did not satisfy the statutory requirement that prior written notice be given to the Office of the County Attorney (see Gorman v Town of Huntington, 12 NY3d at 279 ; Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]).
discussed Cited as authority (rule) Politis v. Town of Islip
N.Y. App. Div. · 2011 · confidence medium
Contrary to the plaintiffs contention, the Town’s computer database recording of telephonic complaints concerning Cinnamon Street did not constitute prior written notice so as to satisfy the requirements of the Town Law or the Code of the Town of Islip (see Gorman v Town of Huntington, 12 NY3d 275, 279 [2009]; Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]; McCarthy v City of White Plains, 54 AD3d at 829-830 ).
discussed Cited as authority (rule) Pangerl v. Town of North Hempstead
N.Y. App. Div. · 2010 · confidence medium
As such, the burden did not shift to the plaintiff to raise a triable issue of fact as to either prior written notice or a recognized exception to that requirement, as is relevant here, that the defendants affirmatively created the dangerous condition through an act of negligence (cf. Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Kiszenik v Town of Huntington, 70 AD3d 1007, 1007-1008 [2010]).
discussed Cited "see" Brown v. County of Suffolk
N.Y. App. Div. · 2011 · signal: see · confidence high
Although written notice would not be required if the defendants created the condition by an affirmative act of negligence (id. at 279; see Kiszenik v Town of Huntington, 70 AD3d 1007, 1008 [2010]), the evidence submitted by the plaintiffs in opposition to the defendants’ cross motion for summary judgment failed to raise a triable issue of fact as to whether the defendants’ repair work immediately resulted in a pothole or other hazardous condition at the site of the injured plaintiffs accident (see Oboler v City of New York, 8 NY3d 888, 889-890 [2007]; Forbes v City of New York, 85 AD3d 110…
Retrieving the full opinion text from the archive…
Robert Kiszenik
v.
Town of Huntington
Appellate Division of the Supreme Court of the State of New York.
Feb 23, 2010.
70 A.D.3d 1007
Cited by 21 opinions  |  Published

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Mayer, J.), dated August 13, 2008, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, and the defendant’s motion for summary judgment dismissing the complaint is granted.

Contrary to the plaintiffs contentions and the determination of the Supreme Court, the defendant’s motion for summary judgment dismissing the complaint should have been granted. The defendant made a prima facie showing of its entitlement to judgment as a matter of law by submitting affidavits of its employees demonstrating that it did not receive the requisite prior written notice of the roadway defect upon which the plaintiff allegedly fell (see Huntington Town Code § 174-3; Jason v Town of N. Hempstead, 61 AD3d 936 [2009]; Smith v Village of Rockville Ctr., 57 AD3d 649, 650 [2008]; Demant v Town of Oyster Bay, 23 AD3d 333, 334 [2005]). This shifted the burden of proof to the plaintiff to raise a triable issue of fact as to either prior written notice or the applicability of one of the two recognized exceptions to the prior written notice requirement,[*1008] namely the municipality’s affirmative creation of the defect or its special use of the property (see Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Groninger v Village of Mamaroneck, 67 AD3d 733 [2009]; Jason v Town of N. Hempstead, 61 AD3d at 936-937; Gold v County of Westchester, 15 AD3d 439, 440 [2005]). The plaintiff failed to meet this burden.

With regard to the issue of notice, the plaintiffs reliance on a telephonic complaint about the alleged condition which the defendant reduced to writing is misplaced, since such a complaint is not the equivalent of prior written notice of the condition (see Gorman v Town of Huntington, 12 NY3d 275, 280 [2009]; McCarthy v City of White Plains, 54 AD3d 828, 829-830 [2008]). Similarly, the “time and material reports” maintained by the defendant as part of its internal records do not satisfy the prior written notice requirement (see Wilkie v Town of Huntington, 29 AD3d 898, 898 [2006]). Likewise, the prior written notice requirement was not satisfied by a purported letter which the plaintiff vaguely testified at his deposition that he might have sent to the defendant’s disability office, rather than to the Town Clerk or the Town Superintendent of Highways, as is required by the applicable code provision (see Gorman v Town of Huntington, 12 NY3d at 279). The plaintiffs various additional claims of actual or constructive notice of the defect on the part of the defendant are also unavailing (see Amabile v City of Buffalo, 93 NY2d 471, 476 [1999]; Groninger v Village of Mamaroneck, 67 AD3d 733 [2009]; McCarthy v City of White Plains, 54 AD3d at 830; Wilkie v Town of Huntington, 29 AD3d 898 [2006]; Berner v Town of Huntington, 304 AD2d 513 [2003]).

The plaintiff similarly failed to raise a triable issue of fact in support of his claim that an exception to the prior written notice requirement applied based on the defendant’s affirmative creation of a dangerous condition, since the plaintiff made no showing that any of the defendant’s internal work records pertained to the defective condition upon which he allegedly fell, and the plaintiffs own testimony at his General Municipal Law § 50-h examination and deposition negated any suggestion that the defendant repaired the subject area of the roadway. Additionally, the plaintiff failed to come forward with any evidence that any repair by the defendant was negligently performed (see Demant v Town of Oyster Bay, 23 AD3d at 334; Gianchetta v E.B. Mar., 258 AD2d 618 [1999]), and that the defective condition was an immediate consequence thereof (see Yarborough v City of New York, 10 NY3d at 728; Jason v Town of N. Hempstead, 61 AD3d at 937; McCarthy v City of White Plains, 54 AD3d at 830). Rather, the plaintiffs own testimony established[*1009] that the defect arose gradually and worsened over time (see e.g. Gold v County of Westchester, 15 AD3d at 440; Vise v County of Suffolk, 207 AD2d 341, 342 [1994]). Rivera, J.P., Leventhal, Lott and Austin, JJ., concur.