           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1383
CA 12-00670
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, AND WHALEN, JJ.


ROMANA MATTIOLI, PLAINTIFF-RESPONDENT,

                     V                            MEMORANDUM AND ORDER

TOWN OF GREECE, DEFENDANT-APPELLANT.


GALLO & IACOVANGELO, LLP, ROCHESTER (ANTHONY M. SORTINO OF COUNSEL),
FOR DEFENDANT-APPELLANT.

LAW OFFICE OF FRANK G. MONTEMALO, PLLC, ROCHESTER (FRANK G. MONTEMALO
OF COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from a judgment and order (one paper) of the Supreme
Court, Monroe County (John J. Ark, J.), entered December 28, 2011.
The judgment and order, inter alia, denied that part of the motion of
defendant for summary judgment dismissing the complaint.

     It is hereby ORDERED that the judgment and order so appealed from
is unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
losses she sustained when her real and personal property was damaged
in a flood that allegedly occurred when a retention pond overflowed
after a rainstorm in 2008. Defendant appeals from a judgment and
order that, inter alia, denied that part of its motion for summary
judgment dismissing the complaint. Contrary to defendant’s
contention, Supreme Court properly denied that part of the motion.
Although defendant met its initial burden on the motion by submitting
evidence establishing that it had not received prior written notice of
the alleged defect as required by defendant’s Town Code (see generally
Davison v City of Buffalo, 96 AD3d 1516, 1518), plaintiff raised a
triable issue of fact whether defendant had received such notice (see
generally Cruzado v City of New York, 80 AD3d 537, 538). In addition,
plaintiff raised “a triable issue of fact concerning the applicability
of [an] exception to the prior written notice requirement, i.e.,
whether [defendant] created the allegedly dangerous condition ‘through
an affirmative act of negligence’ ” (Smith v City of Syracuse, 298
AD2d 842, 842-843; see Jannicelli v City of Schenectady, 90 AD3d 1206,
1207).



Entered:   December 28, 2012                    Frances E. Cafarell
                                                Clerk of the Court
