At page 757 Determining affirmative act of negligence for notice requirement10 citing cases“Noncompliance with the ordinance is fatal to the maintenance of a cause of action unless an exception to the rule is applicable.”
- Shufeldt v. City of Kingston, 140 A.D.3d 1464 (N.Y. App. Div. 3d Dep't 2016).publishedPlaintiff’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 V…
- Wiles v. City of Schenectady, 103 A.D.3d 1061 (N.Y. App. Div. 3d Dep't 2013).published Plaintiff does not contest the lack of prior written notice or argue any special use, but proceeds on the same theory of liability against all defendants, arguing that they performed an affirmative negligent act resulting in the creation o…
- Jannicelli v. City of Schenectady, 90 A.D.3d 1206 (N.Y. App. Div. 3d Dep't 2011).publishedDefendant established the lack of any prior written notice, shifting the burden to plaintiff to oppose the motion with evidence that the claimed exception to the written notice requirement applies (see Brooks v Village of Horseheads, 14 AD…
- Boice v. City of Kingston, 60 A.D.3d 1140 (N.Y. App. Div. 3d Dep't 2009).publishedAs there was no dispute that prior written notice was not provided, the burden was upon plaintiffs to raise a question of fact concerning the applicability of an exception to the notice requirement (see Yarborough v City of New York, 10 NY…
- Gorman v. Town of Huntington, 47 A.D.3d 30 (N.Y. App. Div. 2d Dep't 2007).publishedThe first is when the municipality has created the dangerous or defective condition through affirmative acts of negligence (see Amabile v City of Buffalo, 93 NY2d at 474 ; Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917, 919 [19…
- Murine v. City of Utica, 39 A.D.3d 1237 (N.Y. App. Div. 4th Dep't 2007).publishedPlaintiff failed to allege compliance with the City’s prior written notice requirement (see City of Utica Charter § 1.016; Second Class Cities Law § 244), and the City established that it did not receive prior written notice of the alleged…
- Cotch v. City of Albany, 37 A.D.3d 1012 (N.Y. App. Div. 3d Dep't 2007).publishedInasmuch as “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat a motion for summary judgment, we conclude that Supreme Court properly granted defendant’s motion and dismissed the…
- Fuhrmann v. City of Binghamton, 31 A.D.3d 1036 (N.Y. App. Div. 3d Dep't 2006).published In that regard, plaintiff primarily contends that prior written notice was obviated by the City’s creation of a “defect or hazard through an affirmative act of negligence” (Hendrickson v City of Kingston, 291 AD2d 709, 709 [2002], appeal d…
- Gagnon v. City of Saratoga Springs, 51 A.D.3d 1096 (N.Y. App. Div. 3d Dep't 2008).publishedPlaintiffs asserted that prior written notice was obviated because defendant “created the defect or hazard through an affirmative act of negligence” (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; see Cotch v City of Albany, 37 AD3d 1…
v.
Village of Horseheads
Mugglin, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered February 23, 2004 in Chemung County, which granted defendants’ motion for summary judgment dismissing the complaint.
In 1994, through a cooperative effort involving volunteers, municipal employees and contractors, defendant Village of Horseheads, in Chemung County, constructed a concession stand/picnic pavillion in one of its municipal parks. This structure was built on a concrete slab. Adjacent to the concrete slab is a concrete sidewalk. Plaintiff alleges that she was injured[*757] when she tripped on the edge of the concrete slab because of a height differential between the slab and the adjacent sidewalk. Supreme Court, finding both that the differential was too trivial to be actionable and that plaintiff was not exempt from complying with the prior written notice of a defect provision contained in the Village’s municipal code, granted defendants’ motion for summary judgment and dismissed the complaint. Plaintiff appeals.
It is undisputed that the Village code requires prior written notice of defective, out of repair, unsafe, dangerous or obstructed park property as a condition precedent to maintaining any civil action against the Village for damages or injuries caused by any such defective condition. Noncompliance with the ordinance is fatal to the maintenance of a cause of action unless an exception to the rule is applicable. One of two recognized exceptions is that the municipality “created the defect or hazard through an affirmative act of negligence” (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]). Plaintiff asserts that this exception is applicable herein. As defendant has demonstrated that it did not receive prior written notice, it is plaintiffs burden to prove that this exception is applicable (see Hinkley v Village of Ballston Spa, 306 AD2d 612, 613 [2003]). In our view, plaintiff has not met this burden. In order to demonstrate that the municipality created a dangerous condition by an affirmative act of negligence, plaintiff would have to show that the sidewalk was constructed at a level lower than the adjacent concrete pad. No such evidence is contained in this record. Moreover, since the sidewalk is exposed to the elements and the pad is covered by a roof, the eaves of which drip onto the sidewalk, it is just as plausible that the differential in height was caused by the elements during the seven years between the date of construction and the date of the accident. Absent proof that the Village created the defective condition and that plaintiff complied with the prior written notice provisions of the municipal code, Supreme Court properly dismissed the complaint. This determination makes it unnecessary for us to consider the alternative ground of dismissal that the defect was too trivial to be actionable.
Mercure, J.R, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.