Friday, April 4, 2014

A municipality's liability, and denial of a motion to renew.

Practice point:  Where a municipality has adopted a prior written notice law, it cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies. 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.

Here, in the bill of particulars, the plaintiff alleged that the City affirmatively created a dangerous condition by the manner in which it piled up snow and ice at the location of the accident. The City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not receive prior written notice of a snow mound or icy condition in the area in which the plaintiff fell, and that it did not, merely by plowing the roadway, create a dangerous condition through an affirmative act of negligence.

Student note: The purportedly new facts submitted by the plaintiff on that branch of the motion which was for leave to renew would not have changed the prior determination, and so renewal was denied, pursuant to CPLR 2221[e].

Case:  Moncrieffe v. City of White Plains, NY Slip Op 02017 (2d Dept. 2014).

Here is the decision.

Monday's issue:  A jury's inconsistent verdict.