affirmative act exception in New York

2022The affirmative act exception "'is limited to work by the [municipality] that immediately results in the existence of a dangerous condition'" ( id. at 728 , quoting Oboler v City of New York , 8 NY3d 888, 889 [internal quotation marks and emphasis omitted]). "[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" ( Foster v Herbert Slepoy Corp. , 76 AD3d 210 , 214).

2020The affirmative act exception, the only exception at issue here, "'is limited to work by the [municipality] that immediately results in the existence of a dangerous condition'" ( id. at 728 , quoting Oboler v City of New York , 8 NY3d 888, 889 [internal quotation marks and emphasis omitted]). "[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings" ( Foster v Herbert Slepoy Corp. , 76 AD3d 210 , 214).

2015The City established its prima facie entitlement to judgment as a matter of law with evidence that it did not have prior written notice of the roadway defect and that the affirmative act exception to the prior written notice requirement alleged in the pleadings does not apply (see Oboler v City of New York, 8 NY3d 888, 889 [2007]; Steins v Incorporated Vil. of Garden City, 127 AD3d 957, 958 [2015]; Carlucci v Village of Scarsdale, 104 AD3d at 798 ; Schleif v City of New York, 60 AD3d 926, 928 [2009]; Corey v Town of Huntington, 9 AD3d 345, 345 [2004]).

2015The City established its prima facie entitlement to judgment as a matter of law with evidence that it did not have prior written notice of the roadway defect and that the affirmative act exception to the prior written notice requirement alleged in the pleadings does not apply (see Oboler v City of New York, 8 NY3d 888, 889 [2007]; Steins v Incorporated Vil. of Garden City, 127 AD3d 957, 958 [2015]; Carlucci v Village of Scarsdale, 104 AD3d at 798 ; Schleif v City of New York, 60 AD3d 926, 928 [2009]; Corey v Town of Huntington, 9 AD3d 345, 345 [2004]).

2015The City established its prima facie entitlement to judgment as a matter of law with evidence that it did not have prior written notice of the roadway defect and that the affirmative act exception to the prior written notice requirement alleged in the pleadings does not apply (see Oboler v City of New York, 8 NY3d 888, 889 [2007]; Steins v Incorporated Vil. of Garden City, 127 AD3d 957, 958 [2015]; Carlucci v Village of Scarsdale, 104 AD3d at 798 ; Schleif v City of New York, 60 AD3d 926, 928 [2009]; Corey v Town of Huntington, 9 AD3d 345, 345 [2004]).

2015The City established its prima facie entitlement to judgment as a matter of law with evidence that it did not have prior written notice of the roadway defect and that the affirmative act exception to the prior written notice requirement alleged in the pleadings does not apply (see Oboler v City of New York, 8 NY3d 888, 889 [2007]; Steins v Incorporated Vil. of Garden City, 127 AD3d 957, 958 [2015]; Carlucci v Village of Scarsdale, 104 AD3d at 798 ; Schleif v City of New York, 60 AD3d 926, 928 [2009]; Corey v Town of Huntington, 9 AD3d 345, 345 [2004]).

2015The City established its prima facie entitlement to judgment as a matter of law with evidence that it did not have prior written notice of the roadway defect and that the affirmative act exception to the prior written notice requirement alleged in the pleadings does not apply (see Oboler v City of New York, 8 NY3d 888, 889 [2007]; Steins v Incorporated Vil. of Garden City, 127 AD3d 957, 958 [2015]; Carlucci v Village of Scarsdale, 104 AD3d at 798 ; Schleif v City of New York, 60 AD3d 926, 928 [2009]; Corey v Town of Huntington, 9 AD3d 345, 345 [2004]).

2015The City established its prima facie entitlement to judgment as a matter of law with evidence that it did not have prior written notice of the roadway defect and that the affirmative act exception to the prior written notice requirement alleged in the pleadings does not apply (see Oboler v City of New York, 8 NY3d 888, 889 [2007]; Steins v Incorporated Vil. of Garden City, 127 AD3d 957, 958 [2015]; Carlucci v Village of Scarsdale, 104 AD3d at 798 ; Schleif v City of New York, 60 AD3d 926, 928 [2009]; Corey v Town of Huntington, 9 AD3d 345, 345 [2004]).

2014Evidence that the City, in response to an oral complaint received on April 3, 2009, repaired potholes in the subject street on April 17, 2009, more than 10 weeks prior to the happening of the accident, did not raise a triable issue of fact as to whether the City affirmatively created the condition, as there was no evidence that a dangerous condition existed immediately after the repair was completed or that the repair caused subsequent immediate deterioration (see Spanos v Town of Clarkstown, 81 AD3d 711, 713 [2011]; Hirasawa v City of Long Beach, 57 AD3d 846, 848 [2008]; Lopez v G&J Rudolph I

2014Evidence that the City, in response to an oral complaint received on April 3, 2009, repaired potholes in the subject street on April 17, 2009, more than 10 weeks prior to the happening of the accident, did not raise a triable issue of fact as to whether the City affirmatively created the condition, as there was no evidence that a dangerous condition existed immediately after the repair was completed or that the repair caused subsequent immediate deterioration (see Spanos v Town of Clarkstown, 81 AD3d 711, 713 [2011]; Hirasawa v City of Long Beach, 57 AD3d 846, 848 [2008]; Lopez v G&J Rudolph I

2014Evidence that the City, in response to an oral complaint received on April 3, 2009, repaired potholes in the subject street on April 17, 2009, more than 10 weeks prior to the happening of the accident, did not raise a triable issue of fact as to whether the City affirmatively created the condition, as there was no evidence that a dangerous condition existed immediately after the repair was completed or that the repair caused subsequent immediate deterioration (see Spanos v Town of Clarkstown, 81 AD3d 711, 713 [2011]; Hirasawa v City of Long Beach, 57 AD3d 846, 848 [2008]; Lopez v G&J Rudolph I

2014Evidence that the City, in response to an oral complaint received on April 3, 2009, repaired potholes in the subject street on April 17, 2009, more than 10 weeks prior to the happening of the accident, did not raise a triable issue of fact as to whether the City affirmatively created the condition, as there was no evidence that a dangerous condition existed immediately after the repair was completed or that the repair caused subsequent immediate deterioration (see Spanos v Town of Clarkstown, 81 AD3d 711, 713 [2011]; Hirasawa v City of Long Beach, 57 AD3d 846, 848 [2008]; Lopez v G&J Rudolph I

2014Evidence that the City, in response to an oral complaint received on April 3, 2009, repaired potholes in the subject street on April 17, 2009, more than 10 weeks prior to the happening of the accident, did not raise a triable issue of fact as to whether the City affirmatively created the condition, as there was no evidence that a dangerous condition existed immediately after the repair was completed or that the repair caused subsequent immediate deterioration (see Spanos v Town of Clarkstown, 81 AD3d 711, 713 [2011]; Hirasawa v City of Long Beach, 57 AD3d 846, 848 [2008]; Lopez v G&J Rudolph I

2014Evidence that the City, in response to an oral complaint received on April 3, 2009, repaired potholes in the subject street on April 17, 2009, more than 10 weeks prior to the happening of the accident, did not raise a triable issue of fact as to whether the City affirmatively created the condition, as there was no evidence that a dangerous condition existed immediately after the repair was completed or that the repair caused subsequent immediate deterioration (see Spanos v Town of Clarkstown, 81 AD3d 711, 713 [2011]; Hirasawa v City of Long Beach, 57 AD3d 846, 848 [2008]; Lopez v G&J Rudolph I

2021"The affirmative act exception, the only exception at issue here, is limited to work by [the municipality] that immediately results in the existence of a dangerous condition" ( id. at 715 [internal quotation marks omitted]).