written notice requirement in New York

2026In opposition, the plaintiff failed to raise a triable issue of fact nor did he present any evidence that either exception to the prior written notice requirement applied in this case ( see Amabile v City of Buffalo , 93 NY2d 471, 474-476 ).

2025In opposition, Robinson did not show that either of the exceptions to the prior written notice requirement applied ( see Amabile v City of Buffalo , 93 NY2d 471, 474 [1999]; Yarborough v City of New York , 10 NY3d 726, 728 [2008]).

2026In response to the City's prima facie showing that it had no prior written notice of a defect, plaintiff failed to present evidence showing one of the two exceptions to the prior written notice requirement — namely, that the condition of the roadway immediately resulted from an affirmative act of negligence by the City ( see Rosenblum v City of New York , 89 AD3d 439, 439-440 [1st Dept 2011]), or that a special use resulted in a special benefit to the City ( see Yarborough v City of New York , 10 NY3d 726, 728 [2008]).

2026In response to the City's prima facie showing that it had no prior written notice of a defect, plaintiff failed to present evidence showing one of the two exceptions to the prior written notice requirement — namely, that the condition of the roadway immediately resulted from an affirmative act of negligence by the City ( see Rosenblum v City of New York , 89 AD3d 439, 439-440 [1st Dept 2011]), or that a special use resulted in a special benefit to the City ( see Yarborough v City of New York , 10 NY3d 726, 728 [2008]).

2025In the alternative, plaintiff argues that this case falls within the affirmative negligence exception to the prior written notice rule, whereby a municipality "created the defect or hazard through an affirmative act of negligence"; this "exception is limited to work by the [municipality] that immediately results in the existence of a dangerous condition" ( Oboler v City of New York , 8 NY3d 888, 889 [2007] [internal quotation marks, ellipsis, brackets and citation omitted]; see Vnuk v City of Albany , 191 AD3d at 1057 ).

2024Although an exception to the prior written notice rule indeed exists where "the locality created the defect or hazard through an affirmative act of negligence" ( Amabile v City of Buffalo , 93 NY2d 471, 474 [1999]), it is well settled that such exception is "limited to work by the [municipality] that immediately results in the existence of a dangerous condition" ( Bielecki v City of New York , 14 AD3d 301, 301 [1st Dept 2005]; see Yarborough v City of New York , 10 NY3d 726, 728 [2008]; Oboler v City of New York , 8 NY3d 888, 889-890 [2007]).

2024It follows that defendant "derive[d] a special benefit from that property unrelated to the public use," which rendered the prior written notice requirement inapplicable ( Poirier v City of Schenectady , 85 NY2d 310, 315 [1995]; see Podhurst v Village of Monticello , 202 AD3d [*4]1185, 1187-1188 [3d Dept 2022]; Cole v City of Albany , 80 AD2d 656, 656 [3d Dept 1981]; cf. Little v City of Albany , 169 AD2d 1013, 1014 [3d Dept 1991]).

2024Indeed, the SCF system was the City's sole process for recording road defect reports, including each defect's reported location and the date and time each report was received by DGS, and the system did not route such reports through any third party, consistent with the policy underlying the prior written notice requirement ( see Poirier v City of Schenectad y, 85 NY2d 310, 313-314 [1995]; see also Dalton v City of Saratoga Springs , 12 AD3d 899, 901 [3d Dept 2004] ["Verbal complaints transcribed to a written telephone message or, here, a work order, do not satisfy the statutory requirement"]).

2026"There are only two exceptions to a prior written notice requirement: '[s]uch notice is obviated where the plaintiff demonstrates that the municipality created the defect or hazard through an affirmative act of negligence or that a special use conferred a benefit on the municipality'" ( Thompson v Nassau County , 200 AD3d 823, 825 , quoting Groninger v Village of Mamaroneck , 17 NY3d 125, 127-128 ; see Morreale v Town of Smithtown , 153 AD3d 917, 918 ).

2025Accordingly, the burden of going forward shifted to the opponents of the motion to raise a triable issue of fact as to whether one of the exceptions to the prior written notice requirement applied ( see Groninger v Village of Mamaroneck , 17 NY3d 125 [2011]; Zuckerman , 49 NY2d at 562; Kolenda , 215 AD3d at 648).

2025Since written notices had to be mailed directly to the Office of the County Attorney to satisfy the County's prior written notice requirement, it was immaterial that another municipal department's records had not been searched to determine whether the County had prior written notice of the alleged defect ( see Gorman v Town of Huntington , 12 NY3d 275, 279-280 ; Kenney v County of Nassau , 93 AD3d 694, 695-696 ; Vardoulias v County of Nassau , 84 AD3d 787, 788-789 ).

2024The Court of Appeals has made clear that 3-1- 1 complaints alone do not satisfy the prior written notice requirement (see Gorman v. Town of Huntington, 12 NY3d 275, 280 [2009]["[n]or can a verbal or telephonic communication to a municipal body that is reduced to writing satisfy a prior written notice requirement"]).

2023Such an assumption is not valid because, irrespective of a prior written notice requirement, the underlying theory of liability remains unchanged, i.e., the municipality's alleged breach of its duty to maintain the subject premises in a reasonably safe condition ( see Kiernan v Thompson , 73 NY2d 840, 842 [1988]).

2023While a prior written notice requirement is "an essential element of [a] plaintiff['s] cause of action" against a municipality that has enacted such a law ( Scarsone , 236 AD2d at 870 ; see 1B NY PJI3d 2:225A at 684 [2023]) inasmuch as no "duty will arise with respect to a defective sidewalk or street condition" absent "prior written notice of the defect or condition" ( Barry , 35 NY2d at 633 ), the exceptions to the prior written notice requirement "obviate the necessity of pleading and proving" that element ( Gorman v Ravesi , 256 AD2d 1134, 1135 [4th Dept 1998]; see Groninger , 17 NY3d at 1

2014Contrary to plaintiffs contention, the court properly determined that the City’s prior written notice requirement applies inasmuch as the area where the accident occurred is part of the sidewalk (see Castiglione v Village of Ellenville, 291 AD2d 769, 770 [2002], lv denied 98 NY2d 604 [2002]; Hall v City of Syracuse, 275 AD2d 1022, 1023 [2000]; see also Gallo v Town of Hempstead, 124 AD2d 700, 700 [1986]).

2014Contrary to plaintiffs contention, the court properly determined that the City’s prior written notice requirement applies inasmuch as the area where the accident occurred is part of the sidewalk (see Castiglione v Village of Ellenville, 291 AD2d 769, 770 [2002], lv denied 98 NY2d 604 [2002]; Hall v City of Syracuse, 275 AD2d 1022, 1023 [2000]; see also Gallo v Town of Hempstead, 124 AD2d 700, 700 [1986]).

2022"The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property" ( Forbes v City of New York , 85 AD3d 1106, 1107 ; see Amabile v City of Buffalo , 93 NY2d [*2]at 474; Gonzalez v Town of Hempstead , 124 AD3d 719 ).

2020"The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property" ( Forbes v City of New York , 85 AD3d 1106, 1107 ; see Amabile v City of Buffalo , 93 NY2d at 474 ).

2015“Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” (Barnes v Incorporated Vil. of Port Jefferson, 120 AD3d 528, 529 [2014]; see Town of Hempstead Code § 6-1; Masotto v Village of Lindenhurst, 100 AD3d 718, 719 [2012]).

2015“Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it” (Masotto v Village of Lindenhurst, 100 AD3d at 719 [internal quotation marks omitted]; see Keating v Town of Oyster Bay, 111 AD3d at 605 ).

2018A municipality that has enacted a prior written notice provision "may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies" ( Palka v Village of Ossining, 120 AD3d 641, 641 ; see Poirier v City of Schenectady, 85 NY2d 310, 313 ; Piazza v Volpe, 153 AD3d 563, 564 ; Larenas v Incorporate Vil. of Garden City, 143 AD3d 777, 778 ; Braver v Village of Cedarhurst, 94 AD3d 933, 934 ).

2018Two exceptions to the prior written notice requirement have been recognized, "namely, where the locality created the defect or hazard through an affirmative act of negligence and where a special use' confers a special benefit upon the locality" ( Amabile v City of Buffalo, 93 NY2d 471, 474 [citation omitted]; see Loghry v Village of Scarsdale, 149 AD3d 714, 715 ; Larenas v Incorporated Vil. of Garden City, 143 AD3d at 778 ; Braver v Village of Cedarhurst, 94 AD3d at 934 ). " [T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of

2025For the reasons that follow, the Court finds that neither recognized exception to the prior written notice law is applicable to the facts of this case. " 'Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, [*3]or an exception to the prior written notice requirement applies' ( Loghry v Village of Scarsdale , 149 AD3d 714, 715 [2017] [internal quotation marks omitted]

2025For the reasons that follow, the Court finds that neither recognized exception to the prior written notice law is applicable to the facts of this case. " 'Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, [*3]or an exception to the prior written notice requirement applies' ( Loghry v Village of Scarsdale , 149 AD3d 714, 715 [2017] [internal quotation marks omitted]

2016“The only two recognized exceptions to the prior written notice requirement are where the municipality *701 created the defect through an affirmative act of negligence, or where the defect resulted from a special use of the property by the municipality which conferred a special benefit on it” (Levy v City of New York, 94 AD3d 1060, 1060 [2012]; see Yarborough v City of New York, 10 NY3d at 728 ; Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Lahens v Town of Hempstead, 132 AD3d 954 [2015]). “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed

2016“The only two recognized exceptions to the prior written notice requirement are where the municipality created the defect through an affirmative act of negligence, or where the defect resulted from a special use of the property by the municipality which conferred a special benefit on it” (Levy v City of New York, 94 AD3d 1060, 1060 [2012]; see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Wolin v Town of N. Hempstead, 129 AD3d 833, 834 [2015]).

2018Co. v Town of Pawling , 94 AD3d 1055 ; Kiszenik v Town of Huntington , 70 AD3d 1007 [2010]).

2018Co. v Town of Pawling , 94 AD3d 1055 ; Filaski—Fitzgerald v Town of Huntington , 18 AD3d 603 [2005]).

2024Plaintiffs failed to raise "a triable issue of fact concerning the applicability of [an] exception to the prior written notice requirement, i.e., whether the City created the allegedly dangerous condition through an affirmative act of negligence" ( Davison v City of Buffalo , 96 AD3d 1516 , 1518 [4th Dept 2012] [internal quotation marks omitted]; see Smith v City of Syracuse , 298 AD2d 842, 842-843 [4th Dept 2002]).

2013The plaintiffs also failed to raise a triable issue of fact as to whether the County created the defective condition through affirmative negligence (see Crawford v City of New York, 98 AD3d 935, 937 [2012]; Weinberg v City of New York, 96 AD3d 736, 737 [2012]; Stern v Incorporated Vil. of Flower Hill, 278 AD2d 225, 226 [2000]), or as to the applicability of the “special use” exception to the prior written notice requirement (see Poirier v City of Schenectady, 85 NY2d 310, 314-315 [1995]; Ramos v City of New York, 55 AD3d 896, 897 [2008]; Smith v City of Syracuse, 298 AD2d 842, 842-843 [2002];

2024The plaintiffs appeal. "'Where . . . a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies'" ( Vaisman v Village of Croton-on-Hudson , 209 AD3d 920, 921 , quoting Palka v Village of Ossining , 120 AD3d 641, 641 ). "'The purpose of a prior written notice provision is to place a municipality on notice that there is a defect

2023The Supreme Court granted that branch of the motion, and the plaintiffs appeal. "'Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies '" ( Loghry v Village of Scarsdale , 149 AD3d 714, 715 [emphasis added], quoting Palka v Village of Ossining , 120 AD3d 641, 641 ; see Amabile v City of Buffalo , 93 NY2d

2012“The only two recognized exceptions to a prior written notice requirement are the municipality’s affirmative creation of a defect or where the defect is created by the municipality’s special use of the property” (Forbes v City of New York, 85 AD3d at 1107 ; see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; FilaskiFitzgerald v Town of Huntington, 18 AD3d 603, 604 [2005]).

2012The only two recognized exceptions to the prior written notice requirement are where the municipality created the defect through an affirmative act of negligence, or where the defect resulted from a special use of the property by the municipality which conferred a special benefit on it (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; FilaskiFitzgerald v Town of Huntington, 18 AD3d 603, 604 [2005]).

2019The City established its prima facie entitlement to judgment as a matter of law by presenting evidence that the City agency responsible for maintaining the subject manhole cover did not have prior written notice of the alleged condition of the manhole cover as required by Administrative Code of the City of New York § 7-201(c)(2) ( see Conner v City of New York , 104 AD3d 637, 638 ; cf. Bruni v City of New York , 2 NY3d 319, 325 ), and that no recognized exception to the prior written notice requirement applies.

2014The Pothole Law’s written notice requirement (Administrative Code of City of NY § 7-201 [c] [2]) contains a “written acknowledgement” provision which permits a lawsuit “where there is documentary evidence showing, as clearly as written notice to DOT would show, that the City knew of the hazard and had an opportunity to remedy it” (Bruni v City of New York, 2 NY3d 319, 326 [2004]).

2016The only recognized exceptions to the prior written notice requirement are where the defect or hazard results from an “affirmative act of negligence” by the municipality, or a special use by the municipality that conferred a special benefit upon it (Methal v City of New York, 116 AD3d 743, 743 [2014]; see Carlucci v Village of Scarsdale, 104 AD3d 797, 798 [2013]).

2015Only when one of these exceptions applies is the written notice requirement obviated (see Carlucci v Village of Scarsdale, 104 AD3d 797, 798 [2013]).

2025"The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property" ( Gonzalez v Town of Hempstead , 124 AD3d 719, 720 [internal quotation marks omitted]; see Kolenda v Incorporated Vil. of Garden City , 215 AD3d 647, 649-650 ).

2022"The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property" ( Forbes v City of New York , 85 AD3d 1106, 1107 ; see Amabile v City of Buffalo , 93 NY2d [*2]at 474; Gonzalez v Town of Hempstead , 124 AD3d 719 ).

2024Indeed, the SCF system was the City's sole process for recording road defect reports, including each defect's reported location and the date and time each report was received by DGS, and the system did not route such reports through any third party, consistent with the policy underlying the prior written notice requirement ( see Poirier v City of Schenectad y, 85 NY2d 310, 313-314 [1995]; see also Dalton v City of Saratoga Springs , 12 AD3d 899, 901 [3d Dept 2004] ["Verbal complaints transcribed to a written telephone message or, here, a work order, do not satisfy the statutory requirement"]).

2024The Appellate Division, First Department, has specifically applied this principle and held that a 3-1-1 call report is insufficient to infer prior written notice upon the City for purposes of satisfying §7- 201( c) (see Batts v. City ofNew York, 93 AD3d 425 [1st Dept 2012]; Lopez v. Gonzalez, 44 AD3d 1012 [2d Dept 2007]["[c]ontrary to the plaintiff's contention, neither the citizen complaints nor the prior written repair orders constitute written notice" of the defects]; Akcelik v. Town of Islip, 38 AD3d 483 [2d Dept 2007]["the verbal telephonic complaint which was reduced to a complaint ticke

2010This 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, 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]).

2009Under Highway Law § 139 (2), a county can enact a prior written notice statute that provides that it may not be subjected to liability for injuries caused by an improperly maintained highway unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies (see Gold v County of Westchester, 15 AD3d 439, 440 [2005] ; see generally Cendales v City of New York, 25 AD3d 579 [2006] ; Field v Stubelek, 238 AD2d 467 [1997]).

2020Hampton , 98 AD3d 1007 , 1008; see Amabile v City of Buffalo , 93 NY2d at 474 ). " The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by the plaintiff[ ] in the pleadings and bills of particulars'" ( Larenas v Incorporated Vil. of Garden City , 143 AD3d 777, 778 , quoting Lima v Village of Garden City , 131 AD3d 947, 948 ).

2016Hampton, 98 AD3d 1007 , 1008 [2012]; see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Lopez-Calderone v Lang-Viscogliosi, 127 AD3d 1143, 1144 [2015]; Agard v City of White Plains, 127 AD3d 894, 895 [2015]). “ ‘Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it’ ” (Lopez-Calderone v Lang-Viscogliosi, 127 AD3d at 1145, quoting Miller v Village of E.

2012Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained street or sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies (id.; see Amabile v City of Buffalo, 93 NY2d 471 [1999]; Pennamen v Town of Babylon, 86 AD3d 599 [2011]; De La Reguera v City of Mount Vernon, 74 AD3d 1127 [2010]).

2012Where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries arising from a defective roadway unless either it has received prior written notice of the defective condition or an exception to the prior written notice requirement applies (see De La Reguera v City of Mount Vernon, 74 AD3d 1127 [2010]; Griesbeck v County of Suffolk, 44 AD3d 618, 619 [2007]; Lopez v G&J Rudolph Inc., 20 AD3d 511, 512 [2005]).

2022"While the mere failure to remove all snow or ice from a sidewalk is an act of omission, rather than an affirmative act of negligence, a municipality's act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous icy condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement" ( Larenas v Incorporated Vil. of Garden City , 143 AD3d 777, 778 [citations omitted]; see San Marco v Village/Town of Mount Kisco , 16 NY3d 111 ; Eisenberg v Town of Clarkstown , 172 AD3d at 684-685).

2019A municipality's act in piling snow as part of its snow removal efforts, which snow pile then melts and refreezes to create a dangerous ice condition, constitutes an affirmative act excepting the dangerous condition from the prior written notice requirement ( see San Marco v Village/Town of Mount Kisco , 16 NY3d 111 ; Larenas v Incorporated Vil. of Garden City , 143 AD3d at 778 ).

2023In opposition, the plaintiff failed to raise a triable issue of fact as to whether the Yonkers defendants were provided with the requisite prior written notice of the sidewalk condition alleged or whether an exception to the prior written notice requirement applied ( see Weinstein v County of Nassau , 180 AD3d 730, 731 ; Wolin v Town of N. Hempstead , 129 AD3d at 835; Methal v City of New York , 116 AD3d 743, 744 ).

2022Contrary to the plaintiff's contention, her assertion that the affirmative negligence exception to the prior written notice rule applied was improperly raised for the first time in opposition to the City's motion for summary judgment ( see Methal v City of New York , 116 AD3d 743, 744 ).