                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 16, 2016                      522205
________________________________

JOHN SHUFELDT,
                     Appellant,
     v                                       MEMORANDUM AND ORDER

CITY OF KINGSTON,
                    Respondent.
________________________________


Calendar Date:   April 28, 2016

Before:   McCarthy, J.P., Garry, Egan Jr., Devine and Aarons, JJ.

                              __________


     William D. Pretsch, Kingston, for appellant.

      Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston
(Michael T. Cook of counsel), for respondent.

                              __________


Garry, J.

      Appeal from an order of the Supreme Court (Mott, J.),
entered January 13, 2015 in Ulster County, which granted
defendant's motion for summary judgment dismissing the complaint.

      In October 2011, plaintiff fell from his bicycle and was
knocked unconscious while riding down a hill on Fair Street in
the City of Kingston, Ulster County. Upon returning to the scene
the next day, plaintiff observed what he believed to be a blood
stain on the roadway and a recessed water valve in the pavement
uphill from that location. Plaintiff thereafter commenced this
action alleging that defendant was negligent by not properly
covering the recessed water valve, thus creating a hazardous
depression in the roadway that caused him to be propelled off his
bicycle. Following discovery, defendant moved for summary
judgment dismissing the complaint, and Supreme Court granted the
                               -2-               522205

motion.   Plaintiff appeals.

      It is undisputed that defendant had enacted a prior written
notice provision, and that no written notice had been received by
defendant regarding the alleged defect. Plaintiff relies upon
the exception from the notice requirement for defects that are
immediately created by a municipality's affirmative acts of
negligence (see Oboler v City of New York, 8 NY3d 888, 889-890
[2007]; Guimond v Village of Keeseville, 113 AD3d 895, 896
[2014]; Boice v City of Kingston, 60 AD3d 1140, 1141 [2009]). In
this regard, he argues that defendant affirmatively created the
dangerous condition when it assumed supervisory authority over
the repaving of the subject roadway, which had occurred a few
months before his accident.

      In support of its motion, defendant submitted the
deposition testimony and affidavit of its Superintendent of
Public Works; he stated that he had inspected the subject roadway
"before, during, and after" the paving project, that the paving
conformed to state and city standards for roadway paving, and
that the area of the roadway where the recessed water valve was
located was "in better condition" following the paving project.1
As to the water valve, the Superintendent asserted that it was
required to be recessed into the roadway, to prevent it from
being dislodged by snow plows.

      In opposition to the motion, plaintiff submitted
photographs and an affidavit describing his own measurements of
the recessed water valve, with a depth of two to three inches
"depending upon where you measured." Plaintiff also submitted
the affidavit of an expert in roadway engineering and design.
With no reference to any standards or authority, this expert
opined, in conclusory fashion, that "with new paving the nut of
the water valve should be basically flush with pavement." He
then concluded that the water valve was defective, based upon his


    1
        In a reply affidavit, the Superintendent clarified this
assertion by explaining that the depth of the recessed water
valve had remained the same or was slightly decreased as a result
of the paving project.
                              -3-                  522205

review of photographs and plaintiff's testimony that "the hole
surrounding the nut of the water valve was two (2) to three (3)
inches below the pavement" (emphasis added). Among other things,
this evidence lacks "any semblance of a foundation to support his
opinion or the existence of common knowledge and practice within
the [roadway construction] industry" and, thus, lacks probative
value (Phillips v McClellan St. Assoc., 262 AD2d 748, 749-750
[1999]; see Smith v Allen, 124 AD3d 1128, 1131 [2015]; Maurer v
John A. Coleman Catholic High School, 91 AD3d 1168, 1169 [2012]).
In addition, plaintiff failed to provide any evidence that the
paving project had, in fact, increased the depth of the recessed
water valve or otherwise exacerbated any hazard (see Kushner v
City of Albany, 27 AD3d 851, 852 [2006], affd 7 NY3d 726 [2006]).
Plaintiff's proof thus failed to raise any triable issue of fact
with respect to whether defendant's actions affirmatively created
a dangerous condition, such that prior written notice of the
alleged defect was not required (see Brooks v Village of
Horseheads, 14 AD3d 756, 757 [2005]). Accordingly, we find that
summary judgment was properly granted.

     McCarthy, J.P., Egan Jr., Devine and Aarons, JJ., concur.



     ORDERED that the order is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
