Opinion
193 CA 22-00657
06-09-2023
Mary HAAS and James Haas, Plaintiffs-Appellants, v. TOWN OF CHEEKTOWAGA, Defendant-Respondent.
CANTOR, WOLFF, NICASTRO & HALL LLC, BUFFALO (DAVID J. WOLFF, JR., OF COUNSEL), FOR PLAINTIFFS-APPELLANTS. JOSEPH G. MAKOWSKI, LLC, BUFFALO (JOSEPH G. MAKOWSKI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
CANTOR, WOLFF, NICASTRO & HALL LLC, BUFFALO (DAVID J. WOLFF, JR., OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
JOSEPH G. MAKOWSKI, LLC, BUFFALO (JOSEPH G. MAKOWSKI OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries that Mary Haas (plaintiff) allegedly sustained when she tripped and fell on a street owned and maintained by defendant. Plaintiffs appeal from an order granting the motion of defendant seeking summary judgment dismissing the complaint on the ground of lack of prior written notice. We affirm.
Defendant met its initial burden on the motion by establishing the location of the accident and that it lacked prior written notice of a defect at that location as prescribed by the Code of the Town of Cheektowaga § 168-2, and plaintiffs thus had the burden to demonstrate, as relevant here, that defendant "affirmatively created the defect through an act of negligence ... ‘that immediately result[ed] in the existence of a dangerous condition’ " ( Yarborough v. City of New York , 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ; see Franklin v. Learn , 197 A.D.3d 982, 983, 153 N.Y.S.3d 364 [4th Dept. 2021], lv denied 37 N.Y.3d 918, 2022 WL 402513 [2022] ). Plaintiffs submitted an affidavit from an expert, who opined that defendant defectively paved portions of the street approximately one year prior to the accident, based on photographs taken by plaintiff's son that depicted a portion of the street with "water risers" in the pavement. The expert's affidavit did not raise a question of fact with respect to whether defendant created the defective condition that caused the accident, however, because defendant's moving papers included evidence establishing that the area where plaintiff allegedly fell did not contain the water risers (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 [1980] ).