Calendar Date: February 24, 2017
E. Kopko, Ithaca, for appellants.
Office of Theresa Puleo, Syracuse (Michelle M. Davoli of
counsel), for City of Ithaca, respondent.
Coughlin & Gerhart, LLP, Binghamton (Oliver N. Blaise III
of counsel), for County of Tompkins, respondent.
Before: Garry, J.P., Lynch, Clark, Mulvey and Aarons, JJ.
MEMORANDUM AND ORDER
(1) from an order of the Supreme Court (Rumsey, J.), entered
January 13, 2016 in Tompkins County, which denied
plaintiffs' motion to compel discovery, and (2) from an
order of said court, entered June 23, 2016 in Tompkins
County, which granted defendants' motion for summary
judgment dismissing the complaint.
October 2012, plaintiff Carmen Hockett fell after she tripped
on an uneven sidewalk in the City of Ithaca, Tompkins County.
The height differential between the two slabs of concrete was
approximately one inch. Plaintiffs commenced this personal
injury action alleging, as pertinent here, that defendant
City of Ithaca negligently created the dangerous condition by
failing to install reinforcing bar under the sidewalk.
Thereafter, plaintiffs moved to compel discovery, seeking an
order directing the removal of a slab of the sidewalk for the
purpose of determining whether reinforcing bar had in fact
been installed, among other things. Defendants moved for
summary judgment on the ground that prior written notice had
not been received as required by a local law. In January
2016, Supreme Court denied plaintiffs' discovery motion
and reserved decision upon defendants' summary judgment
motion. In June 2016, summary judgment was granted to
defendants, and the complaint was dismissed. Plaintiffs
appeal from both orders.
well settled that, where a municipality has enacted a prior
written notice statute, it cannot be held liable for damages
resulting from an injury arising from a defective sidewalk
without prior written notice of the allegedly defective or
dangerous condition (see Amabile v City of Buffalo,
93 N.Y.2d 471, 474 ; Chance v County of
Ulster, 144 A.D.3d 1257, 1258 ; Stride v City
of Schenectady, 85 A.D.3d 1409, 1410 ; see
also General Municipal Law § 50-e). Here, the City
satisfied its burden to demonstrate lack of prior written
notice by submitting an affidavit of the City Clerk, who
averred that, based on a review of the City's records, no
written notice had been received concerning the alleged
condition of the sidewalk in question (see San Marco v
Village/Town of Mount Kisco, 16 N.Y.3d 111, 115 ;
Amabile v City of Buffalo, 93 N.Y.2d at 472-473).
The burden then shifted to plaintiffs "to raise issues
of fact as to the applicability of an exception to the
written notice requirement" (Chance v County of
Ulster, 144 A.D.3d at 1258; see Yarborough v City of
New York, 10 N.Y.3d 726, 728 ; Greener v Town
of Hurley, 140 A.D.3d 1285, 1285 ).
contend that the affirmative negligence exception to the
notice requirement applies, basing the argument upon the
alleged failure to install reinforcing bars during
reconstruction of the sidewalk in 1999 - 13 years prior to
Hockett's fall. As Supreme Court held, plaintiffs were
thus required to demonstrate that defendants' actions or
omissions in the course of that reconstruction of the
sidewalk " immediately result[ed] in the
existence of [the] dangerous condition" which caused
Hockett's injuries (Yarborough v City of New
York, 10 N.Y.3d at 728 [emphasis added]; see San
Marco v Village/Town of Mount Kisco, 16 N.Y.3d at 120;
Oboler v City of New York, 8 N.Y.3d 888, 889 ;
Crespo v City of Kingston, 80 A.D.3d 1124, 1125-1126
). Plaintiffs did not produce any evidence of the
sidewalk's condition immediately after its 1999
reconstruction, and it is undisputed that the sidewalk has
not been reconstructed since that time. Moreover,
plaintiffs' expert opined that a failure to install
reinforcing bars in the sidewalk in question would cause the
slabs to "undoubtedly settle unevenly, " a process
that inherently occurs over time, and with a result that is
not immediate (see Boice v City of Kingston, 60
A.D.3d 1140, 1141 ; compare Kiernan v
Thompson, 73 N.Y.2d 840, 842 ). Plaintiffs thus
failed to raise a triable issue of fact relative to the
application of an exception to the prior written notice
requirement, and Supreme Court properly granted summary
judgment to defendants (see Yarborough v City of New
York, 10 N.Y.3d at 728; Shufeldt v City of
Kingston, 140 A.D.3d 1464, 1466 ; Chance v
County of Ulster, 144 A.D.3d at 1259-1260).
as plaintiffs did not address Supreme Court's order
denying their motion to compel discovery, we deem that aspect
of the appeal abandoned (see Soghanalian v Young,
131 A.D.3d 744, 745 n 2 ; Deep v Boies, 121
A.D.3d 1316, 1317 n 1 , lv denied 25 N.Y.3d
903 ). In light of our determination, plaintiffs'
remaining contentions have been rendered academic.
Clark, Mulvey and Aarons, JJ., concur.
that the orders are ...