The followisng papers numbered 1 to 5 were read on this motion:

Plaintiff brings her motion seeking to renew this Court's Decision and Order dated May 13, 2024 (the "Decision"). In the Decision, the Court granted all of the defendants' motions for summary judgment. Now, with this motion, plaintiff seeks renewal only as to the motion filed by the Village of Tarrytown ("Tarrytown").

This case arises out of a trip-and-fall accident on a sidewalk on West Main Street in Tarrytown. In the Decision, the Court determined that Tarrytown owned this sidewalk. The Court found that Tarrytown had not had prior written notice of the condition of the sidewalk, as is required by the Tarrytown Village Code. Section § 216-1, states, in relevant part, that "No civil action shall be brought or maintained against the Village of Tarrytown . . . for damages or injuries to person or property sustained in consequence of any street, . . . sidewalk, . . . owned or maintained by the Village being defective . . . unless written notice of the existence of such condition, relating to the particular place, had theretofore actually been given to the Village Clerk of the Village of Tarrytown. . . ." (Emphasis added). The following Code section states that "The notice required herein shall be in writing and served upon the Village Clerk personally or by certified mail, return receipt requested. The notice shall set forth in sufficient detail the location, nature and time of discovery of said defect." (Emphasis added).

As the Court held in the Decision, there "is no dispute that no such notice was given to the Village Clerk by certified mail." Although the parties disagreed as to whether notice was given to the Village Clerk personally, the Court held that there was no "evidence that any writing was 'served upon the Village Clerk personally.' No party has provided the Court with any caselaw to suggest that an email directed to the Village Clerk, whether sent directly,^[FN1] copied or forwarded, constitutes a notice being sent 'personally.'"

Now on this motion, plaintiff asserts that a recent Court of Appeals decision requires that the Court revise its holding. "A motion for leave to renew must demonstrate that there has been a change in the law that would change the prior determination." U.S. Bank Nat'l Ass'n v. Hall-Davis, 232 AD3d 696, 697—98, 222 N.Y.S.3d 552, 553 (2d Dept. 2024). Plaintiff contends that the case of Calabrese v. City of Albany, 2024 WL 5126038, at *2 (Dec. 17, 2024), is a change in the law that is directly on point. In that case, the City of Albany had a prior written notice statute that required that notice was "actually given to the Commissioner of Public Works." The controversy in that matter arose because prior to the accident in question, the Department of [*2]Public Works (and a commissioner thereof) was abolished, and its functions were absorbed into a different department. That department participated in a citywide online reporting system "that allows users to report, through a software application or website, 'anything that they see that should be addressed by any city department.' When a member of the public reports an issue in [this system], the system routes it automatically to the appropriate government office. Reports of road defects go to DGS, the agency responsible for road maintenance. Users may provide a description of the defect, its location, and photographs of the condition."

The Court of Appeals explained that once the system "routes a road defect report to DGS, a DGS 'front office' employee reviews it and assigns it to the appropriate supervisor for any necessary repair. In turn, the supervisor documents DGS's response by making handwritten notes on a printed copy of the SCF report, and a DGS employee then enters those notes into the SCF system to track and record them. SCF is the only system used by DGS to log, track, and follow up on road defect reports, including all road defect reports received from DGS employees in the field or from members of the public who call or submit reports by regular mail. Outside of SCF, DGS has no other documents pertaining to complaints about street defects." (Emphasis added). Id.

The Court held that "notices submitted electronically through SCF may satisfy the 'written notice' component of the statute . . . [because] the SCF system was the City's sole process for recording road defect reports . . . including each defect's reported location and the date and time each report was received by DGS, and the system did not route such reports through any third party, consistent with the policy underlying the prior written notice requirement." The Court further held that "Of course, should a municipality prefer a different definition of 'written notice,' it may choose to provide one in its prior notice statute." Id. at *3.

The Court went on to find that using Albany's electronic system, reports could be "actually given" to the Commissioner. Although "not every written complaint to a municipal agency necessarily satisfies the strict requirements of prior written notice, or that any agency responsible for fixing the defect that keeps a record of such complaints has, ipso facto, qualified as a proper recipient of such notice," here, "those notices were 'actually given' to the statutory designee," because the City had "created a system for processing complaints that bypassed the need for the Commissioner's personal review. . . . Any written complaints addressed to the Commissioner and actually mailed to DGS would be subject to the same process — that is, they would be routed to the DGS front desk and entered into SCF." Id. at *4-5. The Court of Appeals found that there were questions of fact about whether Albany had had prior written notice of the defect involved in the accident.

The Court finds that this is not a change in the law. Instead, it is the application of the same law to different facts. U.S. Bank Nat'l Ass'n v. Hall-Davis, 232 AD3d 696, 698, 222 N.Y.S.3d 552, 553 (2d Dept. 2024) ("Here, the defendant failed to demonstrate such a change in the law. Instead, the defendant merely pointed to case law in which the courts applied established law."). The Court thus finds that there is no basis for a renewal of the Decision.

Even if the Court were to grant renewal, it would still not change anything. In contrast to Albany's online system, in which reports sent by mail addressed to the Commissioner and reports addressed to anyone else (or reports made to no one, just filed electronically) were all routed the same way, in this case, Tarrytown did not have an online reporting system. Instead, it chose to provide a different definition of written notice in its statute. Reports in Tarrytown have to be "served upon the Village Clerk personally or by certified mail, return receipt requested." [*3](Emphasis added). This is not what happened here, where emails sent to others were copied to or forwarded to the Village Clerk. These emails were not served personally or by certified mail on the Village Clerk.

Although the Court did not need to examine the Tarrytown Code's use of the word "served" in the Decision, it does so now. "Served" is an extremely significant distinction that renders this case entirely distinguishable from Calabrese. In Calabrese, the statute only required that notice be "actually given." Tarrytown, however, requires that the notice be "served" personally or by certified mail. The use of the word "served" is a specific term of art that the Court cannot ignore. See, e.g., CPLR § 308; Gen. Mun. Law § 50-h; CPLR § 5236; Court of Claims Act § 11. While the use of "served" may not mean that a process server is necessary, it certainly does not mean that when a Tarrytown employee copies an email to the Village Clerk, she has been served personally.

Accordingly, the Court finds that plaintiff has not established her right to renewal of the Decision. Pryce v. Nationstar Mortg., LLC, 224 AD3d 857, 859, 206 N.Y.S.3d 314, 316 (2d Dept. 2024) ("the appellant failed to show that there was a change in law that would have changed the prior determination."). The motion is denied in its entirety.

The foregoing constitutes the decision and order of the Court.