affirmative negligence exception in New York

2026The affirmative negligence exception "is limited to work [done] by [a municipality] that immediately results in the existence of a dangerous condition" ( Yarborough v City of New York , 10 NY3d 726, 728 [internal quotation marks omitted]; see Smith v City of New York , 210 AD3d at 62 ).

2026"Additionally, the affirmative negligence exception is limited to work by the city that immediately results in the existence of a dangerous condition" ( Yarborough , 10 NY3d at 728, quoting Oboler v City of New York , 8 NY3d 888, 889 [2007]).

2026"Additionally, the affirmative negligence exception is limited to work by the city that immediately results in the existence of a dangerous condition" ( Yarborough , 10 NY3d at 728 , quoting Oboler v City of New York , 8 NY3d 888, 889 [2007]).

2026"Additionally, the affirmative negligence exception is limited to work by the city that immediately results in the existence of a dangerous condition" ( Yarborough , 10 NY3d at 728, quoting Oboler v City of New York , 8 NY3d 888, 889 [2007]).

2026"The affirmative negligence exception is limited to work done by a municipality 'that immediately results in the existence of a dangerous condition'" (<i>Wilson v Incorporated Vil. of Freeport</i>, 212 AD3d 870, 871 [emphasis omitted], quoting <i>Oboler v City of New York</i>, 8 NY3d 888, 889 ).

2026"The affirmative negligence exception is limited to work done by a municipality 'that immediately results in the existence of a dangerous condition'" ( Wilson v Incorporated Vil. of Freeport , 212 AD3d 870, 871 , quoting Oboler v City of New York , 8 NY3d 888, 889 ).

2023In view of the temporal proximity of complaints that the excavation was sinking, and Bova's opinion that this was a "precipitous process," we find that plaintiff has raised a question of fact as to whether the excavation falls within the affirmative negligence exception ( see Martin v City of New York , 191 AD3d 152 , 155 [1st Dept 2020]; Bania v City of New York , 157 AD3d 612 , 614 [1st Dept 2018]; Guss v City of New York , 147 AD3d 731, 733 [2d Dept 2017]; compare Yarborough v City of New York , 10 NY3d at 727-728 [no evidence of repairs for two years prior to accident; expert testimony tha

2018The affirmative negligence exception is limited, however, to "work by the City that immediately results in the existence of a dangerous condition" ( id. , quoting Bielecki v City of New York , 14 AD3d 301, 301-302 [1st Dept 2005]), as opposed to a defect that "developed over time" ( Yarborough , 10 NY3d at 728 ).

2025At the same time, the affirmative negligence exception addressed situations where a hazard was foreseeable, insofar as the municipality created it by, for example, digging an unmarked ditch in a road or neglecting to cover a street drain" ( id. at 117 [emphasis added]).

2022In 2010, the Court of Appeals applied the affirmative negligence exception to situations "where a municipality's negligence in the maintenance of a municipally owned parking facility triggers the foreseeable development of black ice as soon as the temperature shifts" ( San Marco v Village/Town of Mount Kisco , 16 NY3d at 117 ).

2018Indeed, it is well settled that the affirmative negligence exception " does not apply to conditions that develop over time' " ( id. ; see Christy , 103 AD3d at 1234-1235; Horan , 83 AD3d at 1567 ).

2017Plaintiff failed to present any evidence that the depression in the bricks was present immediately after completion of the work following removal of the temporary traffic pole (see Duffel, 103 AD3d at 1236 ), and it is well settled that the affirmative negligence exception “does not apply to conditions that develop over time” (Horan, 83 AD3d at 1567 ; see Christy, 103 AD3d at 1234-1235 ; Davison, 96 AD3d at 1518 ).

2012Regarding the plaintiffs contention as to the applicability of the affirmative negligence exception to the statutory rule requiring prior written notice, she failed to provide any evidence tending to show that repairs performed by the Village immediately resulted in a pothole or any other surface defect in the area in question (Yarborough v City of New York, 10 NY3d 726, 728 [2008]; see Oboler v City of New York, 8 NY3d 888, 889 [2007]; Richards v Incorporated Vil. of Rockville Ctr., 80 AD3d 594, 594 [2011]; cf. San Marco v Village/Town of Mount Kisco, 16 NY3d 111 [20l0]).

2011It is not disputed that the City did not receive prior written notice of the alleged defective condition in the roadway (see Administrative Code of City of NY § 7-201 [c] [2]) and, thus, the plaintiff sought to establish the City’s liability under the affirmative negligence exception to that rule for work performed by the City which immediately results in the existence of the dangerous condition (see Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Oboler v City of New York, 8 NY3d 888, 889-890 [2007]; Richards v Incorporated Vil. of Rockville Ctr., 80 AD3d 594, 594-595 [2011] ).

2026The affirmative negligence exception "is limited to work [done] by [a municipality] that immediately results in the existence of a dangerous condition" ( Yarborough v City of New York , 10 NY3d 726, 728 [internal quotation marks omitted]; see Smith v City of New York , 210 AD3d at 62 ).

2023Since the Village made such a showing here, the burden shifted to the plaintiff to raise a triable issue of fact as to the applicability of the affirmative negligence exception ( see id. at 69 ; see also Groninger v Village of Mamaroneck , 17 NY3d 125, 129 ; Yarborough v City of New York , 10 NY3d at 728 ).

2025Indeed, the series of photographs submitted by plaintiff essentially shows that the crevice evolved over time, which excludes it from the affirmative negligence exception ( see Oboler v City of New York , 8 NY3d at 889-890 ; Hubbard v County of Madison , 93 AD3d 939, 942-943 [3d Dept 2012], lv denied 19 NY3d 805 [2012]).

2024In any event, the affirmative negligence exception to prior written notice statutes applies only where the action of the municipality "immediately resulted in the existence of the dangerous condition" that caused Serba's injuries ( Chance v County of Ulster , 144 AD3d at 1258 [internal quotation marks, brackets and citation omitted]; see Hubbard v County of Madison , 93 AD3d 939, 942 [3d Dept 2012]; Stride v City of Schenectady , 85 AD3d 1409, 1411 [3d Dept 2011]).

2021"Further, the affirmative negligence exception is limited to work by the [municipality] that immediately results in the existence of a dangerous condition" ( Oboler v City of New York , 8 NY3d at 889-890 [internal quotation marks, ellipsis, brackets and citation omitted]; see Amabile v City of Buffalo , 93 NY2d at 474 ; Harvish v City of Saratoga Springs , 172 AD3d at 1504).

2011Further, contrary to the Supreme Court’s determination, evidence included in the defendant’s motion papers indicating that the defendant undertook repairs to the subject roadway two months before the plaintiffs accident is insufficient to establish the applicability of the affirmative negligence exception to the prior written notice requirement, as the plaintiff failed to raise an issue of fact as to whether the defendant’s repair “ ‘immediately result[ed] in the existence of a dangerous condition’ ” (Oboler v City of New York, 8 NY3d 888, 889 [2007] [emphasis omitted], quoting Bielecki v City

2017“Additionally, the affirmative negligence exception ‘is limited to work by the City that immediately results in the existence of a dangerous condition’ ” (Yarborough v City of New York, 10 NY3d 726, 728 [2008], quoting Oboler v City of New York, 8 NY3d 888, 889 [2007]; see Methal v City of New York, 116 AD3d at 743-744 ; Laracuente v City of New York, 104 AD3d 822, 822-823 [2013]).

2014“Additionally, the affirmative negligence exception ‘is limited to work by the City that immediately results in the existence of a dangerous condition’ ” (Yarborough v City of New York, 10 NY3d 726, 728 [2008], quoting Oboler v City of New York, 8 NY3d at 889 ; see Laracuente v City of New York, 104 AD3d 822, 822 [2013]).

2013Inasmuch as the widening of the gap occurred over time, the affirmative negligence exception would not apply to the extent that plaintiff contends that the widened gap was a dangerous condition that caused the accident (see id.; Young v City of Buffalo, 1 AD3d 1041, 1043 [2003], lv denied 2 NY3d 707 [2004]).

2013Inasmuch as the widening of the gap occurred over time, the affirmative negligence exception would not apply to the extent that plaintiff contends that the widened gap was a dangerous condition that caused the accident (see id.; Young v City of Buffalo, 1 AD3d 1041, 1043 [2003], lv denied 2 NY3d 707 [2004]).

2013Inasmuch as the widening of the gap occurred over time, the affirmative negligence exception would not apply to the extent that plaintiff contends that the widened gap was a dangerous condition that caused the accident (see id.; Young v City of Buffalo, 1 AD3d 1041, 1043 [2003], lv denied 2 NY3d 707 [2004]).

2013Inasmuch as the widening of the gap occurred over time, the affirmative negligence exception would not apply to the extent that plaintiff contends that the widened gap was a dangerous condition that caused the accident (see id.; Young v City of Buffalo, 1 AD3d 1041, 1043 [2003], lv denied 2 NY3d 707 [2004]).

2022Contrary to the plaintiff's contention, her assertion that the affirmative negligence exception to the prior written notice rule applied was improperly raised for the first time in opposition to the City's motion for summary judgment ( see Methal v City of New York , 116 AD3d 743, 744 ).

2021The plaintiffs' evidence in opposition concerning its improper assertion of the affirmative negligence exception to the prior written notice rule ( see Methal v City of New York , 116 AD3d 743, 744 ) failed to raise a triable issue of fact ( see K.B. v City of New York , 166 AD3d 744 , 745-746).

2015The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition (see Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Oboler v City of New York, 8 NY3d 888, 889 [2007]; Methal v City of New York, 116 AD3d 743, 743-744 [2014]; Forbes v City of New York, 85 AD3d at 1107 ).

2012“Moreover, the affirmative negligence exception . . . [is] limited to work by the [municipality] that immediately results in the existence of a dangerous condition” (Forbes v City of New York, 85 AD3d at 1107 [internal quotation marks omitted]; see Yarborough v City of New York, 10 NY3d at 728 ; Oboler v City of New York, 8 NY3d 888, 889 [2007]; Bielecki v City of New York, 14 AD3d 301, 301 [2005]).

2013An omission on the part of the municipality “does not constitute affirmative negligence excusing noncompliance with the prior written notice requirement” (Agrusa v Town of Liberty, 291 AD2d 620, 621 [2002]; see Young v City of Buffalo, 1 AD3d 1041, 1043 [2003], lv denied 2 NY3d 707 [2004]).

2013An omission on the part of the municipality “does not constitute affirmative negligence excusing noncompliance with the prior written notice requirement” (Agrusa v Town of Liberty, 291 AD2d 620, 621 [2002]; see Young v City of Buffalo, 1 AD3d 1041, 1043 [2003], lv denied 2 NY3d 707 [2004]).

2022Only the affirmative negligence exception is implicated in this case, and it "'is limited to work [done] by [a municipality] that immediately results in the existence of a dangerous condition'" ( Yarborough v City of New York , 10 NY3d at 728 , quoting Oboler v City of New York , 8 NY3d 888, 889 ; see San Marco v Village/Town of Mount Kisco , 16 NY3d 111, 117-118 ; Fiero v City of New York , 190 AD3d 822, 824 ; Puzhayeva v City of New York , 151 AD3d at 990 ).

2022Only the affirmative negligence exception is implicated in this case, and the exception "'is limited to work [done] by [a municipality] that immediately results in the existence of a dangerous condition'" ( Yarborough v City of New York , 10 NY3d at 728 , quoting Oboler v City of New York , 8 NY3d 888, 889 ; see Fiero v City of New York , 190 AD3d 822, 824 ; Puzhayeva v City of New York , 151 AD3d at 990 ). 4.

2011The affirmative negligence exception, relied upon by plaintiff in this case, is “limited to work by the [locality] that immediately results in the existence of a dangerous condition” (Bielecki v City of New York, 14 AD3d 301, 301 ), and does not apply to conditions that develop over time, such as the pothole in question (see Torres v City of New York, 39 AD3d 438 ; Gold, 15 AD3d at 440 ).

2011The affirmative negligence exception, relied upon by plaintiff in this case, is “limited to work by the [locality] that immediately results in the existence of a dangerous condition” (Bielecki v City of New York, 14 AD3d 301, 301 [2005]), and does not apply to conditions that develop over time, such as the pothole in question (see Torres v City of New York, 39 AD3d 438 [2007]; Gold, 15 AD3d at 440 ).

2026Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by proffering an affidavit of its Commissioner of Public Works, in [*2] which he averred that he had conducted a records search and found no records indicating that the City had received prior written notice of the alleged defect which caused the plaintiff's fall ( see Chirco v City of Long Beach , 106 AD3d 941, 942; Hirasawa v City of Long Beach , 57 AD3d 846, 848).

2015The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition (see Yarborough v City of New York, 10 NY3d 726 [2008]; Braver v Village of Cedarhurst, 94 AD3d 933 [2012]; Pennamen v Town of Babylon, 86 AD3d 599 [2011]; Hirasawa v City of Long Beach, 57 AD3d 846 [2008]).

2026Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint by proffering an affidavit of its Commissioner of Public Works, in [*2] which he averred that he had conducted a records search and found no records indicating that the City had received prior written notice of the alleged defect which caused the plaintiff's fall ( see Chirco v City of Long Beach , 106 AD3d 941, 942; Hirasawa v City of Long Beach , 57 AD3d 846, 848).

2019Since the plaintiffs failed to allege in their pleadings that the affirmative negligence exception applies, the Town was not required to show, prima facie, that the exception did not apply ( see Chirco v City of Long Beach , 106 AD3d at 942 ; cf. Trela v City of Long Beach , 157 AD3d 747 , 750; Lewak v Town of Hempstead , 147 AD3d 919, 920 ).

2025Here, as the plaintiff concedes, the defendant established, prima facie, that it did not have prior written notice of the alleged defect, thereby shifting the burden to the plaintiff to demonstrate either that a triable issue of fact existed in that regard or that one of the exceptions to the prior written notice requirement applied ( see Reynolds v City of Poughkeepsie , 230 AD3d at 1261; O'Connor v City of Long Beach , 218 AD3d 482, 483).

2025Here, as the plaintiff concedes, the defendant established, prima facie, that it did not have prior written notice of the alleged defect, thereby shifting the burden to the plaintiff to demonstrate either that a triable issue of fact existed in that regard or that one of the exceptions to the prior written notice requirement applied ( see Reynolds v City of Poughkeepsie , 230 AD3d at 1261; O'Connor v City of Long Beach , 218 AD3d 482, 483 ).

2025The affirmative negligence exception "'is limited to work by the [municipality] that immediately results in the existence of a dangerous condition'" ( id. [internal quotation marks omitted], quoting Oboler v City of New York , 8 NY3d 888, 889 ; see DeCaprariis-Salerno v Incorporated Vil. of Rockville Ctr. , 201 AD3d 874, 874-875 ).

2023The affirmative negligence exception is limited to work done by a municipality "that immediately results in the existence of a dangerous condition" ( Oboler v City of New York , 8 NY3d 888, 889 [internal quotation marks omitted]; see Yarborough v City of New York , 10 NY3d at 728 ; DeCaprariis-Salerno v Incorporated Vil. of Rockville Ctr. , 201 AD3d 874, 874-875 ).