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

547
CA 16-01883
PRESENT: PERADOTTO, J.P., LINDLEY, TROUTMAN, AND SCUDDER, JJ.


DAVID AHERN AND ARDIS AHERN,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

CITY OF SYRACUSE, DEFENDANT-APPELLANT.


ROBERT P. STAMEY, CORPORATION COUNSEL, SYRACUSE (MARY D’AGOSTINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

HARRIS & PANELS, SYRACUSE (MICHAEL W. HARRIS OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered April 19, 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 negligence action seeking
damages for injuries allegedly sustained by David Ahern (plaintiff)
when he tripped and fell on a broken curb. Viewing the evidence in
the light most favorable to plaintiffs (see Vega v Restani Constr.
Corp., 18 NY3d 499, 503), we conclude that Supreme Court properly
determined that plaintiffs raised an issue of fact sufficient to
defeat defendant’s motion seeking 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, and the burden therefore shifted to plaintiffs 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” (Simpson v City
of Syracuse, 147 AD3d 1336, 1337 [internal quotation marks omitted]).
In opposition to the motion, plaintiffs submitted evidence that
plaintiff was very familiar with the condition of the walk and curb
both before and after excavation work performed by defendant inasmuch
as he had parked on that street almost daily for approximately 10
years. Plaintiff testified that he observed the area immediately
after construction fencing was removed and noticed that the curb had
been damaged. Plaintiff also testified that no other repairs took
place at the site from the time of the excavation until his fall
approximately six months later. We therefore conclude that plaintiffs
raised an issue of fact whether defendant’s affirmative act of
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                                                         CA 16-01883

negligence “ ‘immediately result[ed] in the existence of a dangerous
condition’ ” (Yarborough v City of New York, 10 NY3d 726, 728; cf.
Duffel v City of Syracuse, 103 AD3d 1235, 1236).

     Contrary to defendant’s further contention, it is not entitled to
summary judgment because the alleged dangerous condition is open and
obvious. “The fact that a dangerous condition is open and obvious
does not negate the duty to maintain premises in a reasonably safe
condition, but, rather, bears only on the injured person’s comparative
fault” (Bax v Allstate Health Care, Inc., 26 AD3d 861, 863; see
Custodi v Town of Amherst, 81 AD3d 1344, 1346-1347, affd 20 NY3d 83).




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
