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

410
CA 16-01611
PRESENT: CENTRA, J.P., LINDLEY, CURRAN, AND TROUTMAN, JJ.


LINZY FANCETT, AN INFANT UNDER THE AGE OF 14
YEARS, BY AND THROUGH HER MOTHER AND NATURAL
GUARDIAN SUSAN KUHN AND SUSAN KUHN, INDIVIDUALLY,
PLAINTIFFS-RESPONDENTS,

                    V                               MEMORANDUM AND ORDER

CITY OF SYRACUSE, DEFENDANT-APPELLANT.


JOSEPH FAHEY, INTERIM CORPORATION COUNSEL, SYRACUSE (JOHN A. SICKINGER
OF COUNSEL), FOR DEFENDANT-APPELLANT.

LYNN LAW FIRM, LLP, SYRACUSE (PATRICIA A. LYNN-FORD OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), entered April 22, 2016. The order denied
the motion of defendant for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiffs commenced this action seeking to recover
damages for injuries allegedly sustained by the infant plaintiff when
her foot went through a gap between two sections of a steel grate
covering a debris basin. Defendant moved for summary judgment
dismissing the complaint on the ground that the grate and debris basin
were part of a culvert on a City street, and the prior written notice
of the defect required by Syracuse City Charter § 8-115 (1) was not
provided with respect thereto. We conclude that Supreme Court
properly denied the motion, but our reasoning differs from that of the
court.

     To meet its initial burden on the motion, defendant was required
to establish as a matter of law that the debris basin was indeed a
culvert or part of a City street for purposes of the prior written
notice requirement (see generally Staudinger v Village of Granville,
304 AD2d 929, 929). We conclude that defendant failed to meet that
burden (cf. Duffel v City of Syracuse, 103 AD3d 1235, 1235; Hall v
City of Syracuse, 275 AD2d 1022, 1023). Here, the debris basin is not
a culvert (see Sobotka v Zimmerman, 48 AD3d 1260, 1261). With respect
to whether the debris basin was situated in a street for the purposes
of the prior written notice requirement, we conclude that defendant
failed to submit evidence establishing the precise location of the
                                 -2-                           410
                                                         CA 16-01611

debris basin. Thus, in the absence of a metes and bounds description
of the nearby streets, a survey map, or any instruments of conveyance
establishing the boundaries of the City streets, defendant failed to
establish that the debris basin was situated in a City street for the
purposes of the prior written notice requirement (see Staudinger, 304
AD2d at 929).




Entered:   March 31, 2017                      Frances E. Cafarell
                                               Clerk of the Court
