| Stride v City of Schenectady |
| 2011 NY Slip Op 05152 [85 AD3d 1409] |
| June 16, 2011 |
| Appellate Division, Third Department |
| Alice R. Stride et al., Appellants, v City of Schenectady,Respondent, et al., Defendants. |
—[*1] L. John Van Norden, Corporation Counsel, Schenectady (John R. Polster of counsel), forrespondent.
Spain, J. Appeal from an order of the Supreme Court (Kramer, J.), entered January 12, 2010in Schenectady County, which granted a motion by defendant City of Schenectady for summaryjudgment dismissing the complaint against it.
Plaintiff Alice R. Stride (hereinafter plaintiff) and her husband, derivatively, commenced thisaction against defendant City of Schenectady, among others, seeking damages related to injuriesplaintiff sustained when, in April 2004, she tripped and fell over a parking meter post that hadbeen severed near the surface of the ground leaving a metal stump along Erie Boulevard in theCity of Schenectady, Schenectady County. The City successfully moved for summary judgmentand the complaint was dismissed against it on the ground that the City did not have prior writtennotice of the hazard or defect as required by the Schenectady City Charter, and that no exceptionsto the notice requirement applied (see Schenectady City Charter, art VII, § C7-1).Plaintiffs appeal, and we affirm.
No dispute exists that the Schenectady City Charter requires written notice as a prerequisiteto liability associated with a defective or dangerous condition on its property (seeSchenectady City Charter § C7-1; Poirier v City of Schenectady, 85 NY2d 310,313 n 1 [1995]). [*2]A municipality that has enacted a priorwritten notice statute "cannot be held liable [for dangerous conditions on its thoroughfares]unless such written notice of the allegedly defective or dangerous condition was actually given"(Crespo v City of Kingston, 80AD3d 1124, 1124 [2011], quoting Gagnon v City of Saratoga Springs, 51 AD3d 1096, 1097 [2008],lv denied 11 NY3d 706 [2008]). Constructive or other actual notice is insufficient wherethe municipality did not receive prior written notice (see Amabile v City of Buffalo, 93NY2d 471, 475-476 [1999]).
In support of its motion for summary judgment, the City submitted an affidavit from thesupervisor of the Bureau of Service, whose responsibilities include maintaining records and logbooks with respect to written notices received regarding defects, and who stated that the City hadnot received written notice of the broken meter post (see Gorman v Town of Huntington, 12 NY3d 275, 279-280[2009]). The burden thus shifted to plaintiffs to establish an issue of fact as to prior written notice(see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980];Babenzien v Town of Fenton, 67AD3d 1236, 1238 [2009]), or to show that one of two exceptions exist: namely, that "thelocality created the defect or hazard through an affirmative act of negligence [or] a 'special use'confers a special benefit upon the locality" (Babenzien v Town of Fenton, 67 AD3d at1238, quoting Amabile v City of Buffalo, 93 NY2d at 474; see Oboler v City of New York, 8NY3d 888, 889 [2007]).
Plaintiffs failed to meet their burden. They argue that an exception to the written noticerequirement exists because the City created the hazardous condition,[FN*]but rely solely on general assertions in the complaint and the bill of particulars that the Citycreated the broken meter, or allowed it to exist. Plaintiffs did not allege any affirmative act ofnegligence that "immediately resulted in the existence of a hazardous condition," as required tofit the exception (Crespo v City of Kingston, 80 AD3d at 1125; see Davis v City of Schenectady, 65AD3d 743, 745 [2009]). Indeed, in her deposition, plaintiff contradicted the assertion thatthe City created the hazard by some affirmative act, testifying that during the winter of 2002 or2003, while at work, she heard a crash, and when she looked out the window, she saw that a carhit the parking meter in question and knocked it over. Accordingly, the City's motion forsummary judgment was properly granted (see Crespo v City of Kingston, 80 AD3d at1126; Fuhrmann v City ofBinghamton, 31 AD3d 1036, 1037 [2006]).
Peters, J.P., Rose, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: Plaintiffs have not argued thatthe "special use" exception applies.