| Crespo v City of Kingston |
| 2011 NY Slip Op 00471 [80 AD3d 1124] |
| January 27, 2011 |
| Appellate Division, Third Department |
| Cathleen A. Crespo, Appellant, v City of Kingston,Respondent. |
—[*1] Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston (Michael T. Cook of counsel), forrespondent.
Stein, J. Appeal from an order of the Supreme Court (O'Connor, J.), entered January 8, 2010in Ulster County, which granted defendant's motion for summary judgment dismissing thecomplaint.
Plaintiff was injured when she fell as she stepped from the sidewalk onto a storm drain thatwas lower than the surface of the roadway in the City of Kingston, Ulster County. Shecommenced this action alleging that defendant was negligent in the maintenance, repair andconstruction of the road and catch basin. Following joinder of issue and discovery, defendantmoved for summary judgment dismissing the complaint. Supreme Court granted defendant'smotion on the basis that plaintiff failed to comply with the prior written notice requirement setforth in the Kingston City Code. Plaintiff now appeals.
We affirm. The law is "settled that where, as here, a municipality has enacted a prior writtennotice statute . . . it cannot be held liable [for dangerous conditions on itsthoroughfares] unless such written notice of the allegedly defective or dangerous condition wasactually given" (Gagnon v City ofSaratoga Springs, 51 AD3d 1096, 1097 [2008], lv denied 11 NY3d 706 [2008]).Here, it is uncontroverted that defendant received no prior written notice of the allegedlydefective condition of the catch basin as required by Kingston City Code § C17-1. Thus,the burden shifted to plaintiff to demonstrate a question of fact as to the applicability of [*2]one of the two recognized exceptions to the prior written noticerequirement (see Babenzien v Town ofFenton, 67 AD3d 1236, 1238 [2009]).
Plaintiff relies on the exception that applies when " 'the locality created the defect or hazardthrough an affirmative act of negligence' " (id. at 1238, quoting Amabile v City ofBuffalo, 93 NY2d 471, 474 [1999]; see Oboler v City of New York, 8 NY3d 888, 889 [2007]), whichimmediately resulted in the existence of a hazardous condition (see San Marco vVillage/Town of Mount Kisco, 16 NY3d 111, 116 [2010]; Yarborough v City of NewYork, 10 NY3d 726, 728 [2008]; Oboler v City of New York, 8 NY3d at 889).In opposition to defendant's motion, plaintiff submitted, among other things, a report and anaffidavit of Alden Gaudreau, an engineer and consultant. In his report dated October 8,2007—less than two months after plaintiff's fall—Gaudreau stated that plaintiff fellmore than nine inches from the curb onto the uneven grating of the storm drain and opined thatthe drain and grating were in a hazardous condition. He noted that there was fresh pavingmaterial around the grating and it appeared that recent work had been done at that location.Gaudreau further noted damage to the pavement and heaving of the curbing adjacent to the drainwhich he believed "had occurred over a prolonged period" and opined that "[t]he hazardouscondition took a long period of time to develop." In his subsequent affidavit, sworn toapproximately 1½ years later, on May 21, 2009, Gaudreau opined that "the subject gratewas unreasonably unsafe . . . due to the excessive height differential. . . from the top of the curb to the grate." However, for the first time, he also opinedthat "[t]he condition became dangerous when [defendant] re-paved the roadway surrounding thegrate without raising the height of the grate, or removing the subject grate and filling in thedepression" and, thus, the unsafe height differential between the curb and the drain existed beforethe heaving of the curbing occurred and did not appear to have changed since the last streetpaving.
"Although it can be harsh for plaintiffs in many cases, . . . [p]rior written noticestatutes [are] designed . . . to release municipalities from the 'vexing problem ofmunicipal street and sidewalk liability' . . . when they have no reasonableopportunity to remedy the problem" (San Marco v Village/Town of Mount Kisco,16 NY3d 116, 2010 NY Slip Op 09197, *3, quoting Barry v Niagara FrontierTr. Sys., 35 NY2d 629, 633 [1974]). Such statutes represent " 'an effort to exempt the[municipality] from liability for [roadway defects] of a kind which do not immediately come tothe attention of the [municipality's] officers unless they are given actual notice thereof' " (SanMarco v Village/Town of Mount Kisco, 16 NY3d 117, 2010 NY Slip Op09197, *3, quoting Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366[1966]). The prior written notice requirement recognizes that, "[w]here the danger is not theimmediate result of the municipality's negligent act, it cannot be said with certainty. . . that the municipality actually knew of the danger" (San Marco vVillage/Town of Mount Kisco, 16 NY3d 120 [Smith, J., dissenting]).
Here, even fully crediting Gaudreau's report and affidavit, and assuming, without finding,that they provided more than mere speculation that the hazardous condition occurredimmediately after the paving of the road, plaintiff offered insufficient evidence to create aquestion of fact as to whether defendant repaved the road or replaced the storm drain in thelocation where she fell. On the other hand, defendant's Superintendent of Public Works testifiedthat he could not recall any repaving work having been done in the area where plaintiff fell sincehe started in his position in 1996, and Gaudreau noted that the owner of a nearby business statedthat the road had not been repaved in at least nine years. Under these circumstances, SupremeCourt correctly found that plaintiff failed to demonstrate that any affirmative act on defendant'spart, as opposed to the act of a subcontractor or other third party, caused the alleged dangerous[*3]condition which resulted in her injuries (see id.;Oboler v City of New York, 8 NY3d at 889-890; Boice v City of Kingston, 60 AD3d 1140, 1141 [2009]).
Cardona, P.J., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.