| Laracuente v City of New York |
| 2013 NY Slip Op 01810 [104 AD3d 822] |
| March 20, 2013 |
| Appellate Division, Second Department |
| Robert Laracuente, Respondent, v City of NewYork, Appellant, and Kim M. Yohan, Respondent. |
—[*1] Joseph Dubowski, Douglaston, N.Y. (Kristen J. Dubowski of counsel), forplaintiff-respondent. Ryan Perrone & Hartlein, Mineola, N.Y. (Robin Mary Heaney and William T. Ryanof counsel), for defendant-respondent.
In an action to recover damages for wrongful death, etc., the defendant City of NewYork appeals from an order of the Supreme Court, Queens County (Kerrigan, J.), datedJune 28, 2011, which denied its motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against it.
Ordered that the order is affirmed, with one bill of costs.
The plaintiff alleges that at approximately 4:45 a.m. on September 28, 2005, hisdecedent, while walking across the Horace Harding Expressway, a service road along theLong Island Expressway, near the intersection with Springfield Boulevard, was struckand killed by a vehicle operated by the defendant Kim M. Yohan. Thereafter, the plaintiffcommenced this action against Yohan and the City of New York, alleging, inter alia, thatthe City had affirmatively created a dangerous condition consisting of a curved section offence erected alongside the roadway that was a proximate cause of the accident. TheSupreme Court denied the City's motion for summary judgment dismissing the complaintand all cross claims insofar as asserted against it.
Where, as here, a municipality has enacted a prior written notice statute, it may notbe subject to liability for personal injuries caused by a defective street or sidewalkcondition absent proof of prior written notice or an exception thereto (see Poirier vCity of Schenectady, 85 NY2d 310, 313 [1995]). "The Court of Appeals hasrecognized two exceptions to this rule, 'namely, where the locality created the defect orhazard through an affirmative act of negligence [and] where a "special use" confers aspecial benefit upon the locality' " (Katsoudas v City of New York, 29 AD3d 740, 741 [2006],quoting Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]).
The affirmative creation exception "[is] limited to work by the City thatimmediately [*2]results in the existence of adangerous condition" (Oboler vCity of New York, 8 NY3d 888, 889 [2007] [internal quotation marks omitted]).Thus, while the eventual emergence of a dangerous condition as a result of wear and tearand environmental factors does not constitute an affirmative act of negligence (see Yarborough v City of NewYork, 10 NY3d 726 [2008]), where, as here, the allegedly dangerous conditionwould have been immediately apparent, the affirmative creation exception applies (see San Marco v Village/Town ofMount Kisco, 16 NY3d 111 [2010]; Roberts v Consolidated Edison ofN.Y., 273 AD2d 369 [2000]; cf. Oboler v City of New York, 8 NY3d 888 [2007]; Nieves v City of New York, 87AD3d 684 [2011]).
Here, the City established, prima facie, that it did not have prior written notice of anydefective or dangerous condition in the portion of fence that allegedly was a proximatecause of the decedent's accident. In opposition to the City's motion, however, the plaintiffand Yohan raised triable issues of fact with respect to whether the City was the partyresponsible for affirmatively creating this alleged condition (see Roberts vConsolidated Edison of N.Y., 273 AD2d 369 [2000]).
The parties' remaining contentions either are without merit or are improperly raisedfor the first time on appeal.
Accordingly, the Supreme Court properly denied the City's motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against it(see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Dillon, J.P.,Dickerson, Leventhal and Hinds-Radix, JJ., concur. [Prior Case History: 2011 NYSlip Op 33279(U).]