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

60
CA 16-01225
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND CURRAN, JJ.


JEFFREY SIMPSON, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

CITY OF SYRACUSE, DEFENDANT-APPELLANT.


ROBERT P. STAMEY, CORPORATION COUNSEL, SYRACUSE (TODD M. LONG OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SIDNEY P. COMINSKY, LLC, SYRACUSE (SIDNEY P. COMINSKY OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered March 29, 2016. The order denied the motion
of defendant for summary judgment dismissing the complaint.

     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 he sustained when he tripped and fell on a sidewalk owned and
maintained by defendant. We agree with defendant that Supreme Court
erred in denying its motion for summary judgment dismissing the
complaint. Defendant met its initial burden by establishing that it
did not receive prior written notice of the allegedly dangerous or
defective condition of the sidewalk as required by its local law (see
Craig v Town of Richmond, 122 AD3d 1429, 1429; Benson v City of
Tonawanda, 114 AD3d 1262, 1263; Davison v City of Buffalo, 96 AD3d
1516, 1518), and plaintiff does not dispute the absence of prior
written notice (see Craig, 122 AD3d at 1429; Sola v Village of Great
Neck Plaza, 115 AD3d 661, 662). The burden thus shifted to plaintiff
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 Christy v City
of Niagara Falls, 103 AD3d 1234, 1234; Horan v Town of Tonawanda, 83
AD3d 1565, 1566-1567). We agree with defendant that plaintiff failed
to meet his burden (see Christy, 103 AD3d at 1234-1235; Duffel v City
of Syracuse, 103 AD3d 1235, 1235-1236). Plaintiff failed to present
any evidence that the depression in the bricks was present immediately
after completion of the work following removal of the temporary
traffic pole (see Duffel, 103 AD3d at 1236), and it is well settled
that the affirmative negligence exception “does not apply to
                                 -2-                            60
                                                         CA 16-01225

conditions that develop over time” (Horan, 83 AD3d at 1567; see
Christy, 103 AD3d at 1234-1235; Davison, 96 AD3d at 1518).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
