Kenneth E. Pitcoff and Kevin G. Faley
Kenneth E. Pitcoff and Kevin G. Faley ()

The Court of Appeals has recognized only two exceptions to the statutory requirement of prior written notice of roadway and sidewalk defects: (1) where the locality created the defect or hazard through an affirmative act of negligence or, (2) where the municipality receives a “special use” or confers or receives a special benefit from the area where the defect exists. Amabile v. City of Buffalo, 93 N.Y.2d 471, 474 (1999).

‘Bielecki’ and ‘Yarborough’

In Bielecki v. City of New York, 14 A.D.3d 301 (1st Dep’t 2005), the plaintiff fell when he stepped into an ankle-deep hole in a pedestrian pathway in Central Park. No evidence of prior written notice existed. Plaintiff’s expert opined that the defect did not exist immediately upon completion of the City’s work, but rather developed over time as a result of water seeping and freezing. The Appellate Division, First Department, held that the affirmative negligence exception to the notice requirement must be limited to work by the city that immediately results in the existence of a dangerous condition. The court in Bielecki stated: “[I]f we were to extend the affirmative negligence exception to cases like this one, where it is alleged that a dangerous condition developed over time from an allegedly negligent municipal repair, the exception to the notice requirement would swallow up the requirement itself, thereby defeating the purpose of the Pothole Law.” Id. at 301.

In Yarborough v. City of New York, 28 A.D.3d 650 (2d Dep’t 2006), aff’d 10 N.Y.3d 726 (2008), plaintiff was injured when he stepped into a playground pothole. Plaintiff’s engineer submitted no evidence that the prior repair immediately resulted in a dangerous condition. The Appellate Division, Second Department, held:

The mere “eventual” emergence of a dangerous condition as a result of wear and tear and environmental factors, as described by one of the plaintiff’s experts, does not constitute an affirmative act of negligence that abrogates the need to comply with prior written notice requirements.

Id. at 651.

In an attempt to overcome the prior written notice requirement, plaintiffs must argue that a municipality’s work immediately resulted in the existence of a dangerous condition. The defendant’s initial burden is to establish that it did not receive prior written notice of the allegedly dangerous or defective condition of the sidewalk as required by its local law. Davison v. City of Buffalo, 96 A.D.3d 1516, 1518 (4th Dep’t 2012). Once that is established, the burden then shifts to the plaintiff to demonstrate that defendant “affirmatively created the defect through an act of negligence … that immediately result[ed] in the existence of a dangerous condition.” Simpson v. City of Syracuse, 147 A.D.3d 1336 (4th Dep’t 2017).

‘Loghry’ and ‘Beiner’

In two recent cases both decided on April 15th of this year, Loghry v. Village of Scarsdale, 2017 WL 1240062 (2d Dep’t 2017), and Beiner v. Village of Scarsdale, 2017 WL 1240245 (2d Dep’t 2017), the Appellate Division, Second Department, clarified what is necessary to defeat a claim of immediate creation of a dangerous condition.

In Loghry, the plaintiff tripped and fell on a bluestone sidewalk in the Village of Scarsdale injuring his back and shoulder. He alleged that the bluestone protruded up from the village walkway. In the notice of claim, complaint and bill of particulars, plaintiff claimed that the village “affirmatively created the defect through its negligent design, selection, and installation of the bluestone sidewalk, and that it negligently maintained and repaired the sidewalk. Loghry, 2017 WL 1240062, *1. The defendant moved for summary judgment based on the fact that it had not received prior written notice as required by Village of Scarsdale Local Law §209-1 and that it did not create the alleged defect.

Plaintiff did not submit any evidence in admissible form to support the allegation that the village created the defect, relying solely upon the pleadings. Defendant, on the other hand, offered an affidavit of a village official establishing no prior written notice and two depositions on the issue of the alleged negligently created condition.

In depositions, two village officials testified that a committee selected the sidewalk design after consultation with a professional and experienced landscape firm. One official testified that the bluestone slabs were level at the time of the installation. The second village official was an engineer who swore that the bluestone was “suitable” for use in the village’s climate. Id.

The Second Department found the village had established that the actions did not “immediately result in the existence of a dangerous condition.” Id. at *2 (internal citations omitted). Plaintiff’s complete lack of evidence to support their allegation that the defective condition arose immediately upon installation proved fatal to their prima facie case. The evidence at most proved that environmental factors created the alleged defect which is an insufficient basis as a matter of law.

In Beiner v. Village of Scarsdale, 2017 WL 1240245, plaintiff alleged that she had tripped on a unlevel slab of bluestone in the Village of Scarsdale and fractured her wrist. She also alleged in her pleadings that the village affirmatively created the defective condition by virtue of its design, selection and installation of the bluestone. Defendant made a prima facie showing that it had not received written notice of the defect by providing an affidavit of the village clerk. Furthermore, the defendant established that it did not create the allegedly defective condition through an affirmative act of negligence. Id. at *2.

In opposition, plaintiff submitted an expert affidavit and statements by village officials. The court found that, at most, this evidence established that environmental effects created the alleged defect over time. Id. The court held that this evidence was clearly insufficient to establish liability under the creation exception. Id. (citing San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111, 117-18 (2010)).

The recent case of Hockett v. City of Ithaca, 2017 WL 1401154 (3d Dep’t 2017), was decided using the same reasoning. Therein plaintiff alleged that the failure to install reinforcing bars in the sidewalk 13 years prior to the accident constituted an immediately created negligent condition. The court noted that plaintiff’s own expert opined that the sidewalk slabs would “undoubtedly settle,” a process that occurs over time. Id. at *1. Summary judgment was granted to the defendant.

‘Kelley’ and ‘Guss’

A minority of cases have found a question of fact exists regarding the immediacy exception. Such was the case in Kelley v. Incorporated Village of Hempstead, 138 A.D.3d 931 (2d Dep’t 2016). In Kelley, plaintiff allegedly was injured when she tripped and fell over a stop sign post stump in a grass strip, between a sidewalk and curb. The village submitted the deposition testimony of a notice witness which indicated that a portion of the stump existed above ground when it was negligently buried by the village, a condition that persisted until the date of accident. Thus, the court found a question of fact existed as to whether removing the sign post immediately resulted in a dangerous condition. Id. at 933.

In the New York City case Guss v. City of New York, 147 A.D.3d 731 (2d Dep’t 2017), a jury verdict was upheld for the plaintiff where plaintiff tripped and fell in a hole in the street. The NYC Department of Environmental Protection had excavated six weeks prior. The city’s witness at trial testified that instead of using a patch of hot asphalt to cover the holes, he used a temporary, unstable cold patch. The dangerous condition was immediately created, thus avoiding the need for written notice of the defect. The jury verdict for the plaintiff was upheld.

Conclusion

The conclusion to be drawn is that an allegation of immediate creation of a defective condition can be rebutted by evidence in the form of deposition testimony from municipal employees. They must include statements that consultation with professionals was had regarding the appropriateness of the materials used in a project. Additionally, that the materials used were suitable to the climate.

The immediate creation exception is difficult for plaintiff to prove as a means of circumventing the prior written notice requirement. Mere pleadings or speculative opinions are legally insufficient. Evidence in the form of affidavits, depositions or expert testimony is essential in order to have plaintiff’s case fall within this narrow exception.