- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Kinnier v. City of Long Beach
- Docket
- 2024-07240
- Filed
- May 27, 2026
- Slip Op
- 2026 NY Slip Op 03296
- Citation
- 2026 NY Slip Op 03296 (N.Y. App. Div. 2d Dep’t 2026)
Background
In January 2023, Suzanne Kinnier commenced an action against the City of Long Beach to recover damages for personal injuries she sustained in June 2022 when she tripped and fell on a bolt protruding from the post of a parking sign located in a grassy median owned by the City. The City moved for summary judgment dismissing the complaint, arguing that it did not have prior written notice of the defect as required by its local prior written notice law. Kinnier opposed the motion.
The Supreme Court, Nassau County granted the City’s motion for summary judgment. The court found that the City established its lack of prior written notice and that Kinnier failed to demonstrate the applicability of any exception to the prior written notice requirement. Kinnier appealed.
Holding
The Appellate Division, Second Department unanimously affirmed the order granting summary judgment to the City, with costs. The court applied the well-established framework governing municipal liability for defective conditions, holding that when 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,” citing Walker v. City of Newburgh, 222 AD3d 809, and Amabile v. City of Buffalo, 93 NY2d 471.
The court found that the City met its initial burden by proffering an affidavit from its Commissioner of Public Works, who averred that a records search revealed no records indicating the City had received prior written notice of the defective bolt. The burden then shifted to Kinnier to raise a triable issue of fact as to either prior written notice or the applicability of one of two recognized exceptions: 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. Kinnier failed to raise a triable issue on either ground.
The court also noted that the plaintiff’s remaining contention was improperly raised for the first time on appeal and was therefore not preserved for review.
Takeaways
This decision reaffirms the significant protection that prior written notice laws provide to municipalities in New York. These laws, adopted by many cities and villages across the state, create a condition precedent to maintaining a negligence action against a municipality for defective conditions on municipal property. Without evidence that the municipality received written notice of the specific defect that caused the injury, the claim will be dismissed regardless of how dangerous the condition may have been.
The two exceptions to the prior written notice requirement — affirmative creation and special use — are narrowly construed. The affirmative creation exception applies only when the municipality’s own negligent work “immediately results in the existence of a dangerous condition.” A defect that develops over time due to wear, weather, or other natural causes will not satisfy this exception, even if the municipality installed or maintained the structure in question.
Practitioners representing plaintiffs in trip-and-fall cases against municipalities should conduct thorough pre-litigation investigation to determine whether prior written notice was given, including filing FOIL requests for relevant municipal records. Additionally, arguments not raised at the trial level will be deemed unpreserved for appellate review.
Why It Matters
The prior written notice doctrine remains one of the most effective defenses available to New York municipalities in premises liability cases. For property owners and municipalities, the case confirms that maintaining organized records of complaints and notices — or the absence thereof — is essential to defending against trip-and-fall claims. For injured plaintiffs and their attorneys, the decision underscores the importance of early investigation and the challenges inherent in suing a municipality over a sidewalk, road, or sign defect when no prior written notice exists in the municipality’s files.