                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 2, 2016                       521957
________________________________

ANGELA GREENER et al.,
                    Appellants,
      v                                      MEMORANDUM AND ORDER

TOWN OF HURLEY,
                    Respondent.
________________________________


Calendar Date:    April 27, 2016

Before:   Peters, P.J., Lahtinen, Garry, Clark and Mulvey, JJ.

                              __________


      Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel),
for appellants.

      Morris Duffy Alonso & Faley, New York City (Iryna
Krauchanka of counsel), for respondent.

                              __________


Mulvey, J.

      Appeal from an order of the Supreme Court (Melkonian, J.),
entered June 16, 2015 in Ulster County, which granted defendant's
motion for summary judgment dismissing the complaint.

      Plaintiff Angela Greener and her spouse, derivatively,
commenced this personal injury action against defendant alleging
that, due to defendant's negligence, she tripped and fell over a
protruding culvert pipe located in front of 113 Broad Street in
the hamlet of West Hurley, Ulster County. Following joinder of
issue, but prior to discovery, defendant moved for summary
judgment seeking to dismiss the complaint on the ground that
defendant did not receive prior written notice of the allegedly
defective culvert pipe pursuant to defendant's code. Supreme
Court granted defendant's motion, concluding that plaintiffs
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failed to show that an exception to the prior written notice
requirement applied. Supreme Court also rejected plaintiffs'
contention that the motion was premature, holding that
plaintiffs' argument that discovery was needed was based on
conclusory assertions. Plaintiffs appeal.

      It is undisputed that defendant has met its initial burden
of establishing that it did not receive prior written notice of
the alleged defect. This shifted the burden to plaintiffs to
raise issues of fact as to the applicability of an exception to
the written notice requirement (see Stride v City of Schenectady,
85 AD3d 1409, 1410 [2011]; Crespo v City of Kingston, 80 AD3d
1124, 1124 [2011]). In this regard, plaintiffs contend that
defendant created the dangerous condition through an affirmative
act of negligence, thereby obviating the need for prior written
notice (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]).
They also argue that defendant's motion should have been denied
because it was premature, as no discovery had been conducted and
that it was likely to lead to proof of defendant's culpability.

      In opposition to defendant's motion, plaintiffs provided an
affidavit from Greener's friend, Debra Rodriguez. According to
Rodriguez, she has resided at 113 Broad Street for many years
and, during "the winter of 2013 to 2014," she heard a "loud bang
while one of the [d]efendant's snowplows was clearing the roadway
in front of [her] house." Then, "[a]fter the snow melted, [she]
saw that the end of the culvert pipe was mangled, bent upwards
and protruding above the surrounding surfaces . . . [and] [she]
believe[s] that this dangerous condition was created by
[defendant's] snowplow." She observed that "the mangled portion
of the culvert pipe coincides with where [defendant's] snowplow
was located at the time [that she] heard a loud bang." She
called defendant "several times to report this condition" and
spoke to its highway superintendent "on numerous occasions before
. . . Greener's incident." Photographs of the culvert pipe
reveal damage to a protruding pipe edge.

      "[A] summary judgment motion is properly denied as
premature when the nonmoving party has not been given reasonable
time and opportunity to conduct disclosure relative to pertinent
evidence that is within the exclusive knowledge of the movant"
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(Metichecchia v Palmeri, 23 AD3d 894, 895 [2005]). We find that
the Rodriguez affidavit is sufficient to demonstrate that
discovery is required and, therefore, defendant's motion should
have been denied as premature. Plaintiffs seek depositions of
defendant's employees who plowed the roadway or inspected the
area where this accident occurred, noting that such efforts will
likely lead to additional relevant information about how the
condition was created. These facts are exclusively within the
knowledge of the party moving for summary judgment and leave
plaintiffs with only circumstantial evidence to oppose the motion
(see CPLR 3212 [f]; Pank v Village of Canajoharie, 275 AD2d 508,
509 [2000]). The Rodriguez affidavit, combined with the
photographs of the damaged culvert pipe, demonstrate that the
need for more discovery is based upon more than "pure conjecture
and speculation" (Gersten-Hillman Agency, Inc. v Heyman, 68 AD3d
1284, 1288 [2009]). Consequently, summary judgment is
inappropriate.

     Peters, P.J., Lahtinen, Garry and Clark, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, and motion denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
