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

1079
CA 15-00254
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


LEO JOSEPH SWIETLIKOWSKI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

VILLAGE OF HERKIMER, DEFENDANT-APPELLANT.


MURPHY, BURNS, BARBER & MURPHY, LLP, ALBANY (STEPHEN M. GROUDINE OF
COUNSEL), FOR DEFENDANT-APPELLANT.

MICHAEL A. CASTLE, HERKIMER (SCOTT H. OBERMAN OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Herkimer County (Erin
P. Gall, J.), entered November 19, 2014. The order denied defendant’s
motion for summary judgment.

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

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he sustained when he fell from his bicycle while riding on a
road owned and maintained by defendant. According to plaintiff, the
accident was caused by a defective condition in the road. Supreme
Court denied defendant’s motion for summary judgment dismissing the
complaint, and we affirm.

     Contrary to defendant’s contention, the court properly denied
that part of its motion seeking dismissal of the complaint on the
ground that it did not receive prior written notice of any defective
or dangerous condition. Defendant asserted on its motion, and
plaintiff conceded, that defendant did not have any such notice (see
Groninger v Village of Mamaraneck, 17 NY3d 125, 129; see generally
Village Law § 6-628). Therefore, this case turns on whether defendant
created the allegedly defective or dangerous condition with an
“affirmative act of negligence” (Groninger, 17 NY3d at 127 [internal
quotation marks omitted]). Here, plaintiff’s expert opined that the
dangerous condition was caused by the intentional removal of paving
material from the area adjacent to the water valve box cover at the
time the roadway was resurfaced, and we therefore conclude that
“plaintiff raised an issue of fact whether defendant created a
dangerous condition that caused the accident” (Hawley v Town of Ovid,
108 AD3d 1034, 1035; see Carpenter v Rapini, 35 AD3d 1202, 1203; Smith
v City of Syracuse, 298 AD2d 842, 842-843).
                                 -2-                          1079
                                                         CA 15-00254

     Defendant further contends that it was entitled to summary
judgment dismissing the complaint because plaintiff could not identify
the cause of his fall. We reject that contention. Although a
defendant “ ‘may establish its prima facie entitlement to judgment as
a matter of law by submitting evidence that the plaintiff cannot
identify the cause of his or her fall’ without engaging in
speculation” (Dixon v Superior Discounts & Custom Muffler, 118 AD3d
1487, 1487; see Hunt v Meyers, 63 AD3d 685, 685, lv denied 13 NY3d
712), we conclude that defendant failed to meet that burden here (see
Smart v Zambito, 85 AD3d 1721, 1721; see generally Zuckerman v City of
New York, 49 NY2d 557, 562). In support of its motion, defendant
submitted plaintiff’s deposition testimony and plaintiff’s testimony
from a hearing pursuant to General Municipal Law § 50-h, in which
plaintiff testified that the accident occurred after the front wheel
of the bicycle hit something on the roadway. Although plaintiff could
not remember seeing the object with which he collided, he testified
that the accident occurred in the immediate vicinity of a gap in the
pavement adjacent to a water valve box cover, “thereby rendering any
other potential cause of [his] fall ‘sufficiently remote or technical
to enable [a] jury to reach [a] verdict based not upon speculation,
but upon the logical inferences to be drawn from the evidence’ ”
(Nolan v Onondaga County, 61 AD3d 1431, 1432; see Paternostro v
Advance Sanitation, Inc., 126 AD3d 1376, 1377; Dixon, 118 AD3d at
1488).




Entered:   October 9, 2015                     Frances E. Cafarell
                                               Clerk of the Court
