Opinion
1018 CA 13-02029.
10-03-2014
Daniel E. BRICK, as Trustee in Bankruptcy for Deborah L. Huff and Lewis R. Huff, Jr., Plaintiff–Appellant, v. CITY OF NIAGARA FALLS, Defendant–Respondent.
Hogan Willig, PLLC, Amherst (Diane Tiveron of Counsel), for Plaintiff–Appellant. Craig H. Johnson, Corporation Counsel, Niagara Falls (Douglas A. Janese, Jr., of Counsel), for Defendant–Respondent.
Hogan Willig, PLLC, Amherst (Diane Tiveron of Counsel), for Plaintiff–Appellant.
Craig H. Johnson, Corporation Counsel, Niagara Falls (Douglas A. Janese, Jr., of Counsel), for Defendant–Respondent.
PRESENT: CENTRA, J.P., FAHEY, WHALEN, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Deborah L. Huff and Lewis R. Huff, Jr. commenced this action to recover damages for injuries sustained by Deborah in a motor vehicle accident on one of defendant's roads. The complaint alleged that the injuries were caused by the negligence of defendant inasmuch as defendant failed to, inter alia, remedy the accumulation of snow and ice on the road. Supreme Court properly granted defendant's motion for summary judgment dismissing the complaint. Defendant met its initial burden on the motion by establishing as a matter of law that it did not receive prior written notice of a dangerous or defective condition, and the burden shifted to plaintiff to demonstrate the applicability of an exception to that requirement, i.e., as relevant herein, that defendant “affirmatively created” the dangerous or defective condition through an act of negligence (Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; see Pulver v. City of Fulton Dept. of Pub. Works, 113 A.D.3d 1066, 1066–1067, 979 N.Y.S.2d 431 ). We conclude that plaintiff failed to meet his burden (see Agrusa v. Town of Liberty, 291 A.D.2d 620, 621, 737 N.Y.S.2d 673 ; Gorman v. Ravesi, 256 A.D.2d 1134, 1135, 684 N.Y.S.2d 386 ; cf.
San Marco v. Village/Town of Mount Kisco, 16 N.Y.3d 111, 118, 919 N.Y.S.2d 459, 944 N.E.2d 1098, rearg. denied 16 N.Y.3d 796, 919 N.Y.S.2d 509, 944 N.E.2d 1149 ; see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). We reject plaintiff's further contention that it was impossible for the Huffs to comply with the prior written notice provision set forth in defendant's City Charter (see San Marco, 16 N.Y.3d at 116, 919 N.Y.S.2d 459, 944 N.E.2d 1098 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.