         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
100
CA 12-01292
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


LORI DUFFEL, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF SYRACUSE, DEFENDANT-APPELLANT.


MARY ANNE DOHERTY, CORPORATION COUNSEL, SYRACUSE (AIMEE PAQUETTE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GREENE & REID, PLLC, SYRACUSE (JAMES T. SNYDER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered May 9, 2012. The order denied the
motion of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted
and the complaint is dismissed.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries that she allegedly sustained when she tripped and fell on the
edge of a tree grate that had sunk or collapsed below ½-inch from the
surrounding sidewalk. Defendant moved for summary judgment dismissing
the complaint on the ground that the tree grate was part of the
sidewalk and the prior written notice of the defect required by
Syracuse City Charter § 8-115 was not provided. We conclude that
Supreme Court erred in denying the motion. Defendant met its initial
burden by establishing that the tree grate was part of the sidewalk
for purposes of the prior written notice requirement (see Hall v City
of Syracuse, 275 AD2d 1022, 1023), and that it did not have prior
written notice of the alleged defect. Plaintiff failed to raise an
issue of fact whether either exception to the prior written notice
rule applies (see Yarborough v City of New York, 10 NY3d 726, 728).
Specifically, plaintiff failed to raise an issue of fact whether the
special use exception to the prior written notice requirement applies
(see Poirier v City of Schenectady, 85 NY2d 310, 315), or whether
defendant affirmatively created the allegedly dangerous condition by
an act of negligence (see Yarborough, 10 NY3d at 728). Plaintiff
failed to present any evidence of negligent design or construction
(cf. Palmer v Rouse, 198 AD2d 629, 631), and also presented no
evidence that defendant repaired the tree grate at any time after its
installation, or that the depression was present immediately after
installation of the tree grate (see Oboler v City of New York, 8 NY3d
                              -2-                  100
                                             CA 12-01292

888, 889).




Entered:   February 8, 2013         Frances E. Cafarell
                                    Clerk of the Court
