This is an action to recover for personal injuries allegedly sustained by plaintiff as a result of a trip and fall due to two missing brick pavers from around a tree in a sidewalk located in front of 187 Martine Avenue. Relying upon its prior written notice statute embodied in Section 277 of the White Plains Code ^[FN1] and its contentions that the record demonstrates not only that plaintiff has [*2]failed to affirmatively plead compliance with the written notice statute and that defendant had no prior written notice of the subject allegedly defective sidewalk condition, but also that the City did not create or cause the defective sidewalk condition through any affirmative act of negligence, defendant is moving for summary judgment dismissing this action. In support thereof, defendant relies upon the examination before trial testimony of Thomas Minck, the City of White Plains' Code Enforcement Officer, wherein he had testified that he had conducted a search of the prior written notice logbook maintained by the City and that he found no prior written notice of any defective, unsafe, dangerous or obstructed condition of the sidewalk area where plaintiff alleges to have fallen. The City also argues that there is no support in the record for finding that the City had caused or created the defective condition through its affirmative acts of negligence.

Plaintiff opposes the motion, arguing that "the documentary and deposition evidence ... establishes that the [] City of White Plains did in fact receive actual prior written notice of the dangerous condition" about which plaintiff complains, and that it had failed to properly remedy that condition prior to plaintiff's May 10, 2005, fall. Specifically, plaintiff relies upon documentary evidence establishing that Emanuel Charles, a code enforcement officer for the City of White Plains, had issued to the Highway Department, on October 18, 2004, a written Notice of Defect stating that there were missing bricks around a tree grate located at 187 Martine Avenue in the area of a bus stop,^[FN2] which is the precise location where plaintiff had tripped seven months later. Thus, plaintiff contends that the City not only had actual notice of the defective sidewalk condition about which plaintiff complains, but that it had issued its own written Notice of Defect concerning same which satisfies the statutory prior written notice requirement.

To the extent that Mr. Minck's testimony was that the City "likely" had received a telephone call complaining about the sidewalk condition and that it does not keep a written [*3]record of any such telephone calls, plaintiff argues that the City had failed to adhere to the requirements of General Municipal Law Section 50-g which imposes upon municipalities the requirement to keep indexed records according to locale of "all written notices which it shall receive of the existence of such defective, unsafe, dangerous or obstructed condition ..." Plaintiff also submits that defendant has failed to establish that the notice of condition which the City acknowledges receiving and which resulted in the preparation of the Notice of Defect did not come to it in written form. According to plaintiff, all of the foregoing raises questions of fact with respect to the City's notice.

Further, plaintiff contends that the deposition testimony of the City's two employees who were solely responsible for performing sidewalk repairs in the City establishes that they had no personal recollection of having made the subject repairs referred to in either of the two Notices of Defect, nor did they possess any work orders, time sheets or logs relating to brick replacement in front of 187 Martine Avenue. Thus, plaintiff argues that not only is there a triable issues of fact regarding whether the City had actual and/or constructive knowledge of the condition complained of, as well as prior written notice, but whether the repairs in fact had been undertaken.

Contrary to plaintiff's arguments, it is now settled law that where, as here, a prior written notice statute applies, a municipality's actual notice of a defective condition is wholly irrelevant and an insufficient basis upon which to predicate liability. See Granderson v. City of White Plains, 29 AD3d 739 (2nd Dept. 2006). Indeed, there exists only two exceptions to the requirement of prior written notice, i.e., "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 (1999). Since neither of the foregoing exceptions are raised nor argued by plaintiff in the action at bar, liability may properly be imposed upon defendant City only if the City, in accordance with Section 277 of the White Plains Code, had received prior written notice of the allegedly defective sidewalk condition which plaintiff maintains had caused her to trip and fall. See Smith v. Town of Brookhaven, 45 AD3d 567 (2nd Dept. 2007).

Plaintiff further is mistaken to the extent that she argues that defendant's apparent failure to have recorded in writing and maintained records with respect to telephonic complaints it may have received regarding dangerous sidewalk conditions constitutes an issue of fact regarding the City's prior written notice. See Akcelik v. Town of Islip, 38 AD3d 483 (2nd Dept. 2007); Dalton v. City of Saratoga, 12 AD3d 899 (3rd Dept. 2004).

Nevertheless, after this Court's careful review of the record at bar and upon application of the controlling principles of law on a summary judgment motion, defendant's motion is denied, as the Court finds that a triable issue of fact is presented with respect to whether the City's Code Enforcer's October 18, 2004, Notice of Defect, which this Court finds constitutes sufficient prior written notice of the defective condition here in issue, satisfies the statutory requirement that the commissioner of public works or his office be served with such notice where said Notice had been addressed to the Highway Department, and whether the City, pursuant thereto, had undertaken proper repair of the sidewalk by replacing the bricks where the undisputed evidence demonstrates that a mere five months after the claimed repair missing bricks allegedly caused [*4]plaintiff's fall.

A note of issue previously having been filed, this matter is respectfully referred back to the Central Calendar Part for trial assignment.

Dated: February 4, 2008

White Plains, New York

_________________________________

Mary H. Smith

J.S.C.

Joseph A. Maria, P.C.

Attorney for Defendant

301 Old Tarrytown Road

White Plains, New York 10603

Birbrower, Beldock & Margolis, P.C.

Attorneys for Plaintiff

151 North Main Street, Suite 300

New City, New York 10956