David Cohen v Town of Huntington

Cohen v Town of Huntington 2004 NY Slip Op 01530 [5 AD3d 424] March 8, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 26, 2004

David Cohen, Respondent,
v
Town of Huntington, Appellant, et al., Defendants.

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In a consolidated action to recover damages for personal injuries, the defendant Town of Huntington appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), entered April 2, 2003, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured due to a dangerous and defective condition created by a manhole cover on a public sidewalk in the Town of Huntington. He commenced this action against, among others, the Town to recover damages for personal injuries. The Town sought summary judgment dismissing the complaint insofar as asserted against it on the ground that it lacked prior written notice of the alleged condition as required by the Huntington Town Code. In opposition to the Town's prima facie demonstration of entitlement to judgment as a matter of law on such ground, the plaintiff raised a triable issue of fact as to whether the Town created the alleged condition, an exception to the prior written notice requirement (see Kiernan v Thompson, 73 NY2d 840, 841-842 [1988]; Kupfer v Village of Briarcliff Manor, 288 AD2d 269, 270 [2001]; cf. Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]). Thus, the Town's cross motion for summary judgment was properly denied. Ritter, J.P., Santucci, Adams and Crane, JJ., concur.