Calendar Date: February 21, 2017
& Melvin, Syracuse (Nicholas P. Jacobson of counsel), for
Office of Theresa Puleo, Syracuse (Michelle M. Davoli of
counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark,
MEMORANDUM AND ORDER
from an order of the Supreme Court (LeBous, J.), entered May
2, 2016 in Tompkins County, which granted defendant's
motion for summary judgment dismissing the complaint.
commenced this action to recover damages for personal
injuries upon allegations that, in July 2011, she tripped and
fell after catching her foot on "an exposed pipe that
protruded up through the surface of the public walkway."
Plaintiff further alleged that defendant negligently
designed, constructed and maintained the public walkway
within Ithaca Commons (hereinafter the commons),
where the accident occurred.
specifically, plaintiff identified the defective condition as
being created "as a result of the walkway surface around
the... pipe having sunken in or eroded." Thereafter,
defendant moved for summary judgment dismissing the
complaint. Supreme Court granted defendant's motion,
finding that defendant did not receive prior notice of the
defect at issue and that plaintiff failed to submit proof to
satisfy any exception to the prior notice requirement.
Plaintiff now appeals, and we affirm.
as here, "a municipality has enacted a prior written
notice statute pertaining to its thoroughfares or sidewalks,
it cannot be held liable unless such written notice of the
allegedly defective or dangerous condition was actually
given" (Gagnon v City of Saratoga Springs, 51
A.D.3d 1096, 1097 , lv denied 11 N.Y.3d 706');">11 N.Y.3d 706
; accord Palo v Town of Fallsburg, 101 A.D.3d
1400, 1400 , lv denied 20 N.Y.3d 862');">20 N.Y.3d 862 ).
There are only two recognized "exceptions to the
statutory rule requiring prior written notice, namely, 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 N.Y.2d 471, 474
 [internal citations omitted]; accord Dalton v City
of Saratoga Springs, 12 A.D.3d 899, 900 ; see
Babenzien v Town of Fenton, 67 A.D.3d 1236, 1238 )
. With regard to the creation of the
dangerous condition, "[t]o satisfy this exception, a
defendant's actions must have 'immediately result[ed]
in the existence of [the] dangerous condition' alleged to
have caused [a] plaintiff's injuries" (Chance v
County of Ulster, 144 A.D.3d 1257, 1258 , quoting
Yarborough v City of New York, 10 N.Y.3d 726,
inasmuch as plaintiff alleged in her complaint that the
defective condition resulted from the sidewalk either sinking
or eroding, rather than that it immediately resulted from
some specified action taken by defendant, defendant's
initial burden on the motion for summary judgment was limited
to the issue of prior written notice (see Yarborough v
City of New York, 10 N.Y.3d 726, 728 ; Chance
v County of Ulster, 144 A.D.3d at 1259 n 1). In support
of its motion, defendant offered the deposition testimony of
its City Clerk, who is one of the designated officials
responsible for keeping the records of any written notice of
defects. The City Clerk averred that defendant had no
notices, prior to plaintiff's fall, regarding a defect in
the section of the walkway in front of the particular
restaurant where plaintiff had testified that she fell. As to
two notices that the City Clerk identified as pertaining to
the same block upon which plaintiff's accident occurred,
neither pertained to the area in front of the restaurant that
plaintiff identified as where she tripped. Defendant also
provided the affidavit of its Assistant Superintendent of
Public Works, who averred that his office was also designated
to receive written notices of defects. The Assistant
Superintendent averred that the Department of Public Works
had not received "written notice or complaint regarding
a protruding pipe... in front of [the relevant
restaurant]" prior to plaintiff's alleged accident.
Based on the foregoing, defendant met its initial burden of
establishing its lack of prior written notice, shifting the
burden to plaintiff to demonstrate a question of fact as to
prior written notice or that defendant affirmatively created
the defect within the meaning of the exception (see
Gagnon v City of Saratoga Springs, 51 A.D.3d 1097;
see generally Yarborough v City of N.Y., 10 N.Y.3d
plaintiff's submissions regarding identified defects on
the commons specifically referenced the area in front of the
relevant restaurant or referenced exposed pipes. Complaints
that plaintiff submitted regarding defective conditions of
the walkway generally or potholes generally do not reasonably
encompass the alleged defect of an exposed pipe (see
generally Marotta v Massry, 279 A.D.2d 877, 878 ).
Accordingly, in the absence of any evidence that the defect
was sufficiently identified in written notice prior to
plaintiff's fall, plaintiff failed to raise a triable
issue of fact as to prior written notice (see Dalton v
City of Saratoga Springs, 12 A.D.3d at 900-901;
McCabe v Town of Riverhead, 2 A.D.3d 416, 417
; Marotta v Massry, 279 A.D.2d at 879)
. Moreover, plaintiff failed to put
forward any proof indicating that defendant had taken actions
that immediately resulted in the defective condition so as to
raise a material issue of fact as to that exception (see
Yarborough v City of New York, 10 N.Y.3d at 727-728;
Chance v County of Ulster, 144 A.D.3d at 1259).
Accordingly, Supreme Court properly granted defendant's
motion for summary judgment dismissing the complaint.
Jr., Lynch, Devine and Clark, JJ., concur.
that the order is ...