        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

450
CA 12-01957
PRESENT: CENTRA, J.P., FAHEY, CARNI, WHALEN, AND MARTOCHE, JJ.


JAMES HAWLEY, AS PARENT AND NATURAL GUARDIAN
OF SCOTT HAWLEY, AN INFANT,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TOWN OF OVID, DEFENDANT-APPELLANT.


LYNCH LAW OFFICE, PLLC, SYRACUSE, CONGDON, FLAHERTY, O’CALLAGHAN,
REID, DONLON, TRAVIS & FISHLINGER, UNIONDALE (CHRISTINE GASSER OF
COUNSEL), FOR DEFENDANT-APPELLANT.

CELLINO & BARNES, P.C., ROCHESTER (NICHOLAS DAVIS OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Seneca County (Dennis
F. Bender, A.J.), entered June 4, 2012. The order denied the motion
of defendant for, inter alia, summary judgment dismissing the
complaint.

     It is hereby ORDERED that the order so appealed from is modified
on the law by granting the motion in part and dismissing the
complaint, as amplified by the bill of particulars, insofar as it
alleges negligence based upon the nonfeasance of defendant and as
modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action on behalf of his
son, who was injured while bicycling over a bridge located in the Town
of Ovid (defendant), alleging various wrongful, negligent and careless
acts and omissions of defendant. Specifically, plaintiff alleged in
the bill of particulars, inter alia, that defendant failed to keep the
bridge and road in a reasonably safe condition and that defendant
created the “dangerous and/or unsafe condition.” Defendant moved for
dismissal of the complaint pursuant to CPLR 3211 (a) (7) and for
summary judgment dismissing the complaint pursuant to CPLR 3212 on the
respective grounds that plaintiff failed to plead and to prove that he
provided to defendant prior written notice of a dangerous or defective
condition on or near the bridge as required by Local Law No. 1.
Plaintiff responded that he did not need to plead or provide prior
written notice because it was plaintiff’s contention that defendant
affirmatively created the dangerous condition. Supreme Court
concluded that the lack of notice defense did not apply here and
denied defendant’s motion in its entirety.
                                 -2-                          450
                                                         CA 12-01957

     Prior written notice of a defective or unsafe condition of a road
or bridge is a condition precedent to an action against a municipality
that has enacted a prior notification law (see Amabile v City of
Buffalo, 93 NY2d 471, 474). Where the municipality establishes that
it lacked prior written notice, the burden shifts to the plaintiff to
demonstrate the applicability of an exception to the rule, i.e., that
the municipality affirmatively created the defect through an act of
negligence or that a special use resulted in a special benefit to the
municipality (see Yarborough v City of New York, 10 NY3d 726, 728).
The affirmative negligence exception is “limited to work by the
[municipality] that immediately results in the existence of a
dangerous condition” (Oboler v City of New York, 8 NY3d 888, 889
[internal quotation marks omitted]). An omission on the part of the
municipality “does not constitute affirmative negligence excusing
noncompliance with the prior written notice requirement” (Agrusa v
Town of Liberty, 291 AD2d 620, 621; see Young v City of Buffalo, 1
AD3d 1041, 1043, lv denied 2 NY3d 707).

     We conclude that defendant met its initial burden of establishing
as a matter of law that it did not receive prior written notice of any
defective or dangerous condition on or near the bridge as required by
Local Law No. 1 (see Hall v City of Syracuse, 275 AD2d 1022, 1023).
Viewing the evidence in the light most favorable to plaintiff, as we
must (see Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 340), we
conclude, however, that plaintiff raised an issue of fact whether
defendant created a dangerous condition that caused the accident (see
Benty v First Methodist Church of Oakfield, 24 AD3d 1189, 1190; Smith
v City of Syracuse, 298 AD2d 842, 843). We note that, insofar as
plaintiff’s complaint, as amplified by the bill of particulars,
alleges negligence based upon defendant’s nonfeasance, partial summary
judgment should have been granted to defendant with respect to that
claim because, absent prior written notice, a municipality cannot be
held liable for failing to repair, inspect or maintain its roads and
bridges (see Price v Village of Phoenix, 222 AD2d 1079, 1080). We
therefore modify the order accordingly.

     All concur except CENTRA, J.P., who dissents and votes to reverse
the order in accordance with the following Memorandum: I respectfully
dissent and would reverse the order and grant defendant’s motion
seeking, inter alia, summary judgment dismissing the complaint based
on plaintiff’s failure to comply with defendant’s prior written notice
law. Plaintiff commenced this action seeking damages for injuries
sustained by his son (infant plaintiff) when infant plaintiff fell off
his bicycle. Plaintiff alleged in the notice of claim that the infant
plaintiff was injured “when his bicycle hit a large gap between the
roadway and the steel deck” of a bridge. The infant plaintiff
testified at his 50-h hearing and deposition that the gap caused the
accident. Plaintiff does not dispute that defendant met its initial
burden on the motion by establishing as a matter of law that it did
not have prior written notice of the allegedly defective condition
(see Lastowski v V.S. Virkler & Son, Inc., 64 AD3d 1159, 1160-1161).
The burden thus shifted to plaintiff to raise a triable issue of fact
whether either of the two exceptions to the written notice requirement
applied, i.e., that defendant “created the defect or hazard through an
                                 -3-                          450
                                                         CA 12-01957

affirmative act of negligence . . . [or that] a ‘special use’ confers
a special benefit upon [defendant]” (Amabile v City of Buffalo, 93
NY2d 471, 474; see Lastowski, 64 AD3d at 1161). Only the affirmative
negligence exception is at issue here.

     I conclude that plaintiff failed to raise a triable issue of fact
whether defendant created the dangerous condition. The evidence
establishes that there was an expansion joint where the road meets the
steel deck of the bridge, resulting in a gap. Over time, that gap has
widened due to erosion, and wear and tear from vehicles. Indeed,
plaintiff’s expert noted that the gap had become “dangerously large
due to gradual deterioration,” and that the “crumbling has gradually
occurred over years and is not a recent sudden failure.” The
affirmative negligence exception “ ‘is limited to work by [defendant]
that immediately results in the existence of a dangerous condition’ ”
(Yarborough v City of New York, 10 NY3d 726, 728). Inasmuch as the
widening of the gap occurred over time, the affirmative negligence
exception would not apply to the extent that plaintiff contends that
the widened gap was a dangerous condition that caused the accident
(see id.; Young v City of Buffalo, 1 AD3d 1041, 1043, lv denied 2 NY3d
707).

     Further, plaintiff’s reliance on a 2008 repaving project is
misplaced. In 2008, defendant hired a contractor to apply a “cold mix
pave” for six-tenths of a mile, starting at the bridge. After the job
was completed, defendant’s representative told the contractor that
there was not enough crown in the road, so the contractor came back
and applied a “one-inch overlay with a crown in it.” To avoid any
“lump/bump” next to the bridge, the contractor applied the overlay
starting a little further back from the bridge. In my opinion, this
repaving project did not create the gap in the bridge; it merely
failed to fix the gap. Plaintiff therefore failed to raise a triable
issue of fact whether defendant created the dangerous condition, as
opposed to simply failing to repair it.

     Plaintiff’s expert further opined that the overlay “created a
hump back from the eroded pavement . . . [, and] the hump propelled
the bike into the eroded area and magnified the impact. This
affirmative action of the faulty repair aggravated the defects to
create a dangerous condition.” I note that the infant plaintiff never
testified that an alleged hump in the road caused the accident, and
plaintiff did not allege any such dangerous condition in his notice of
claim, complaint, or bill of particulars. In any event, I conclude
that the affidavit of plaintiff’s expert was insufficient to raise a
triable issue of fact inasmuch as there was no showing that there was
actually a “hump” in the road or that it constituted a defective or
dangerous condition.




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
