| Boice v City of Kingston |
| 2009 NY Slip Op 01572 [60 AD3d 1140] |
| March 5, 2009 |
| Appellate Division, Third Department |
| Mary Boice et al., Appellants, v City of Kingston,Respondent. |
—[*1] Feldman, Kleidman & Coffey, L.L.P., Fishkill (Marsha S. Weiss of counsel), forrespondent.
Peters, J. Appeal from an order of the Supreme Court (Egan Jr., J.), entered April 8, 2008 inUlster County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff Mary Boice (hereinafter plaintiff) tripped and fell when she stepped in a rut on apublic street in the City of Kingston, Ulster County. Thereafter, she and her husband,derivatively, commenced this action seeking recovery for personal injuries. Following joinder ofissue and discovery, defendant moved for summary judgment dismissing the complaint on theground that it did not receive prior written notice of the alleged defect in the roadway inaccordance with Kingston City Charter § C17-1. In opposition, plaintiffs argued that noprior written notice was required inasmuch as defendant affirmatively created the hazardouscondition and because it had actual or constructive knowledge of it. Supreme Court granteddefendant's motion, prompting this appeal.
As there was no dispute that prior written notice was not provided, the burden was uponplaintiffs to raise a question of fact concerning the applicability of an exception to the noticerequirement (see Yarborough v City ofNew York, 10 NY3d 726, 728 [2008]; Fuhrmann v City of Binghamton, 31 AD3d 1036, 1037 [2006]; Brooks v Village of Horseheads, 14AD3d 756, 757 [2005]). In that regard, plaintiffs assert that defendant "created the defect orhazard through an affirmative act of negligence," thus obviating the need for prior written notice(Amabile v City [*2]of Buffalo, 93 NY2d 471, 474[1999]; see Cotch v City of Albany,37 AD3d 1012, 1013 [2007]).
Plaintiffs attempt to prove the affirmative creation of a defective condition by defendant intwo ways. First, they assert that defendant negligently constructed and designed the street uponwhich plaintiff fell. Specifically, plaintiffs proffered the report and affidavit of their engineer,who opined that the absence of a drainage system and installation of an asphalt curb causedwater to accumulate on the roadway, thereby degrading its surface. Notably, the record is devoidof any evidence that defendant constructed or designed the road. Moreover, although plaintiffs'engineer opined that the pooling of water caused by the lack of drainage and asphalt curb"hasten[ed] the rate of deterioration of the pavement" and caused it to crack "over time," theaffirmative negligence exception is "limited to work by the [municipality] thatimmediately results in the existence of a dangerous condition" (Oboler v City of New York, 8 NY3d888, 889 [2007] [internal quotation marks and citations omitted]; accord Yarborough vCity of New York, 10 NY3d at 728). Thus, in the absence of any evidence that the purportedimproper drainage of the roadway resulted in an immediate defective or hazardous condition, asopposed to one that evolved over a period of time, plaintiffs have failed to raise an issue of factin this regard.
Next, plaintiffs contend that rather than repaving the entire road, defendant repeatedlypatched it, thereby creating an uneven and dangerous surface. Yet, plaintiffs "presented noevidence of who last [patched] this section of the roadway before the accident, when any suchwork may have been carried out, or the condition of the [road's surface] . . .immediately after any such [patching]" (Oboler v City of New York, 8 NY3d at 890;see Yarborough v City of New York, 10 NY3d at 728; De Rosso v Town of Poughkeepsie, 51AD3d 966, 966 [2008]). More importantly, there is not a scintilla of evidence that any suchpatchwork repairs caused plaintiff to trip and fall. In fact, plaintiffs' engineer specifically notedthat the rut on which plaintiff stepped was not part of the patching process. Furthermore, to theextent that plaintiffs allege that defendant negligently failed to repave the entire roadway, suchconduct amounts to nonfeasance, rather than affirmative negligence (see Hook v Village of Ellenville, 46AD3d 1318, 1320 [2007]; Agrusa v Town of Liberty, 291 AD2d 620, 621 [2002];Merchant v Town of Halfmoon, 194 AD2d 1031, 1032 [1993]). Accordingly, SupremeCourt properly found that plaintiffs failed to raise an issue of fact as to whether defendantcreated the defective condition that caused plaintiff's fall.
Finally, despite plaintiffs' assertions to the contrary, it is now settled that neither constructivenotice (see Amabile v City of Buffalo, 93 NY2d at 473-474) nor actual notice (see Pagillo v City of Oneonta, 25AD3d 1044, 1045 [2006], lv denied 7 NY3d 704 [2006]) by a municipality of adefect is sufficient to override the statutory requirement of prior written notice.
Cardona, P.J., Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,without costs.