| Davis v City of Schenectady |
| 2009 NY Slip Op 06106 [65 AD3d 743] |
| August 6, 2009 |
| Appellate Division, Third Department |
| Jessica Joy Davis, Appellant, v City of Schenectady, Respondent,et al., Defendant. |
—[*1] L. John Van Norden, Corporation Counsel, Schenectady (Gilah R. Moses of counsel), forCity of Schenectady, respondent.
Kavanagh, J. Appeal from an order of the Supreme Court (Caruso, J.), entered September 9,2008 in Schenectady County, which granted a motion by defendant City of Schenectady forsummary judgment dismissing the complaint against it.
Plaintiff was allegedly injured when she rode her bicycle into a hole located in a drivewayapron in front of property owned by defendant Joseph Sangiovanni. Sangiovanni had previously,through an intermediary, contacted David Savignano—defendant City of Schenectady'sSupervisor of Streets—to determine if the City would place a blacktop patch on a portionof the driveway apron. Savignano, upon inspecting the area, found that approximately 8 to 12inches of the apron were cracked and in need of repair. He agreed to patch this area, but toldSangiovanni that prior to any repair being performed, Sangiovanni had to remove any loosedebris from the cracked section of the apron. Savignano returned to the property several dayslater and discovered that Sangiovanni had not only cleared out the loose debris, but had, in fact,removed a large section of the driveway apron. As a result, Sangiovanni was informed that whilethe City was willing to patch the edge of the apron, it would not undertake such an extensiverepair. Subsequently, plaintiff had her accident.[*2]
After her fall, plaintiff commenced separate actionsagainst Sangiovanni and the City. The two actions were subsequently consolidated and the Citymoved for summary judgment dismissing the complaint against it on the ground that it did nothave prior written notice of the defective condition as required by Schenectady City Charter§ C7-1. In opposition, plaintiff and Sangiovanni both concede written notice was neverserved but contend that the City created the defective condition making prior written noticeunnecessary (see Yarborough v City ofNew York, 10 NY3d 726, 728 [2008]). Supreme Court granted the City's motion andplaintiff now appeals.
Plaintiff claims that the City, through its discussion with Sangiovanni about preparing theapron so that the repair could be made and Sangiovanni's subsequent removal of the large sectionof the driveway apron, "created the defect or hazard through an affirmative act of negligence"(Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; see Fuhrmann v City of Binghamton,31 AD3d 1036, 1037 [2006]; Hendrickson v City of Kingston, 291 AD2d 709, 709[2002], appeal dismissed and lv denied 98 NY2d 662 [2002]). We disagree. The recordreveals that the City requested that Sangiovanni merely clear any loose debris away from thedamaged area so that the new blacktop would better adhere to the driveway apron. Sangiovannithen took it upon himself to remove not only the loose debris, but the entire apron, leaving anopen hole adjacent to the sidewalk. Sangiovanni's decision to remove the entire apron and createa hole where none previously existed was not done at the City's request and, as such, did notconstitute an affirmative act of negligence that can be attributed to the City. Moreover, while theCity had performed some work in this area a few years prior to this incident, there is nothing inthe record to support a finding that this activity had "immediately result[ed] in the existence of adangerous condition" that caused plaintiff's accident (Oboler v City of New York, 8 NY3d 888, 889 [2007] [internalquotation marks, citation and emphasis omitted]; accord Boice v City of Kingston, 60 AD3d 1140, 1141 [2009]).
Likewise, we reject the contention that the City's liability to plaintiff can be premised uponthe principle that it had an agency relationship with Sangiovanni. There is no evidence in therecord that Sangiovanni, when he decided to replace the entire apron, was acting on the City'sbehalf or under its control. As such, an agency relationship did not exist (seeRestatement [Third] of Agency § 1.01).
Peters, J.P., Spain, Lahtinen and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.