         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
99
CA 12-00973
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


RICHARD F. CHRISTY, JR., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF NIAGARA FALLS, DEFENDANT-APPELLANT.


CRAIG H. JOHNSON, CORPORATION COUNSEL, NIAGARA FALLS (CHRISTOPHER M.
MAZUR OF COUNSEL), FOR DEFENDANT-APPELLANT.

GIBSON MCASKILL & CROSBY, LLP, BUFFALO (KRISTIN A. TISCI OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Catherine R. Nugent Panepinto, J.), entered February 16, 2012. The
order, insofar as appealed from, denied the cross motion of defendant
for summary judgment.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he was thrown from his motorcycle upon
hitting a pothole. Supreme Court denied both plaintiff’s motion for
partial summary judgment on liability and defendant’s cross motion for
summary judgment dismissing the complaint. We agree with defendant
that the court erred in denying its cross motion. Defendant
municipality met its initial burden by establishing that it lacked
prior written notice under the applicable pothole law, and plaintiff
thus had the burden to demonstrate, as relevant here, that defendant
“affirmatively created the defect through an act of negligence . . .
‘that immediately result[ed] in the existence of a dangerous
condition’ ” (Yarborough v City of New York, 10 NY3d 726, 728; see
Lastowski v V.S. Virkler & Son, Inc., 64 AD3d 1159, 1161). Even
assuming, arguendo, that defendant “performed the negligent pothole
repair” without a tack coat over brick and steel rails (Yarborough, 10
NY3d at 728), we note that the statements of plaintiff’s experts
concerning the defective nature of the repair were dependent upon the
passage of time to allow for weather and traffic. We thus conclude
that plaintiff failed to raise an issue of fact whether defendant
thereby created a defective condition within the meaning of the
affirmative act of negligence exception (see generally Zuckerman v
City of New York, 49 NY2d 557, 562). The additional requirement of
weather or traffic conditions precludes application of that exception
                                 -2-                            99
                                                         CA 12-00973

because it cannot be said that the defective condition necessarily
“ ‘immediately result[ed]’ ” from the repair (Davison v City of
Buffalo, 96 AD3d 1516, 1518). Furthermore, defendant’s purported
negligent road construction, which occurred more than 20 years before
plaintiff’s accident, also did not immediately result in the existence
of a defective condition (see id.).




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