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.
