Bonilla v. Village of Westbury

Bonilla v Village of Westbury 2026 NY Slip Op 05760 October 7, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Maria Bonilla, appellant, v Village of Westbury, respondent, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 7, 2026 2025-06705, (Index No. 614561/22) Lara J. Genovesi, J.P. William G. Ford Helen Voutsinas Donna-Marie E. Golia, JJ. Law Offices of Ira M. Perlman, P.C. and Robert D. Rosen, P.C., New York, NY (Robert D. Rosen of counsel), for appellant. Milber Makris Plousadis & Seiden, LLP (Gerber Ciano Kelly Brady LLP, Garden City, NY [Brendan T. Fitzpatrick], of counsel), for respondent. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Randy Sue Marber, J.), entered April 18, 2025. The order granted the motion of the defendant Village of Westbury for summary judgment dismissing the complaint insofar as asserted against it. ORDERED that the order is affirmed, with costs. In October 2022, the plaintiff commenced this action against, among others, the defendant Village of Westbury to recover damages for personal injuries allegedly sustained after tripping on an uneven sidewalk condition. In September 2024, the Village moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it did not have prior written notice of the alleged defect and that no exception to the written notice requirement applied under the circumstances. In an order entered April 18, 2025, the Supreme Court granted the Village's motion. The plaintiff appeals. "Prior written notice of a defective condition is a condition precedent to maintaining an action against a municipality where, as here, there is a local law requiring such notice" (Callaghan v County of Nassau, 236 AD3d 725, 726 [internal quotation marks omitted]). To be entitled to summary judgment, the municipality must first establish that it lacked prior written notice of the alleged defect (see Smith v City of New York, 210 AD3d 53, 63). "Once that showing is made, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality" (Canaday v Village of Wappingers Falls, 220 AD3d 731, 732 [internal quotation marks omitted]; see Yarborough v City of New York, 10 NY3d 726, 728). Here, the Village established, prima facie, that it did not have prior written notice of the alleged defect. The Village's prior written notice statute provided, in relevant part, "[n]o civil action shall be maintained against the Village for . . . injury to person . . . sustained in consequence of any street, . . . sidewalk or crosswalk . . . being out of repair, unsafe, dangerous or obstructed, unless at least 48 hours before prior to the occurrence resulting in such . . . injuries . . . , written [*2]notice of the defective, unsafe, dangerous or obstructed condition of such street, . . . sidewalk or crosswalk shall have been filed in the office of the Village Clerk, and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect" (Code of Village of Westbury § 215-3). In support of its motion, the Village submitted an affidavit from the Village Clerk, who was responsible for maintaining the files containing notices of defects. She averred that she had personally searched the relevant files containing notices received prior to and including the date of the plaintiff's fall and that she did not find any prior written notice of any defective condition at the subject location from that period (see Samuel v County of Nassau, 241 AD3d 1490, 1491; Sanchez v County of Nassau, 222 AD3d 685, 687). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, since written notices had to be filed directly with the office of the Village Clerk to satisfy the Village's prior written notice requirement, it was immaterial that another municipal department's records had not been searched to determine whether the Village had prior written notice of the alleged defect (see Gorman v Town of Huntington, 12 NY3d 275, 279-280; Samuel v County of Nassau, 241 AD3d at 1491). Moreover, the plaintiff failed to raise a triable issue of fact as to whether the Village affirmatively created the condition that allegedly caused the plaintiff to fall (see Yarborough v City of New York, 10 NY3d at 728; Oboler v City of New York, 8 NY3d 888, 889-890). Accordingly, the Supreme Court properly granted the Village's motion for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff's remaining contentions are without merit. GENOVESI, J.P., FORD, VOUTSINAS and GOLIA, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court