quirement applies” (Miller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Lopez–Calderone v. Lang–Viscogliosi, 127 A.D.3d 1143, 1144, 7 N.Y.S.3d 506 ; Agard v. City of White Plains, 127 A.D.3d 894, 895, 8 N.Y.S.3d 344 ). “ ‘Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it’ ” (Lopez–Calderone v. Lang–Viscogliosi, 127 A.D.3d at 1145, 7 N.Y.S.3d 506, quoting Miller v. Village of E. Hampton, 98 A.D.3d at 1008, 951 N.Y.S.2d 171 ; accord Palka v. Village of Ossining, 120 A.D.3d 641, 642, 992 N.Y.S.2d 273 ). “The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by the plaintiff[ ] in the pleadings and bill of particulars” (Lima v. Village of Garden City, 131 A.D.3d 947, 948, 16 N.Y.S.3d 249 ). Here, the plaintiff alleged in the complaint and bill of particulars that the defendant created the icy condition by its affirmative negligent act of piling snow on both sides of the sidewalk, which snow then melted, pooled in a sunken area of the sidewalk, and then refroze to create the condition.

Insofar as relevant to this appeal, "an exception to the prior written notice laws exists where the municipality creates the defective condition through an affirmative act of negligence" ( Piazza v. Volpe, 153 A.D.3d 563, 564, 59 N.Y.S.3d 466 ; seeMiller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171 ). " ‘The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by the plaintiff[ ] in the pleadings and bills of particulars’ " ( Larenas v. Incorporated Vil. of Garden City, 143 A.D.3d 777, 778, 39 N.Y.S.3d 204, quoting Lima v. Village of Garden City, 131 A.D.3d 947, 948, 16 N.Y.S.3d 249 ; seeBrower v. County of Suffolk, 185 A.D.3d 774, 775, 127 N.Y.S.3d 145 ). However, where the moving defendant is an entity against whom an action may not be commenced absent the filing of a notice of claim, "a [plaintiff] may not add a new theory of liability which was not included in the notice of claim" ( Semprini v. Village of Southampton, 48 A.D.3d 543, 544, 852 N.Y.S.2d 208 ; seeRojas v. Hazzard, 171 A.D.3d 820, 821, 97 N.Y.S.3d 177 ).

efect or dangerous condition, or an exception to the prior written notice requirement applies’ " ( Seegers v. Village of Mineola, 161 A.D.3d 910, 910, 77 N.Y.S.3d 86, quoting Palka v. Village of Ossining, 120 A.D.3d 641, 641, 992 N.Y.S.2d 273 ; see Town Law § 65–a[2] ; Taustine v. Incorporated Vil. of Lindenhurst, 158 A.D.3d 785, 71 N.Y.S.3d 547 ). "Two exceptions to the prior written notice requirement have been recognized, ‘namely, where the locality created the defect or hazard through an affirmative act of negligence and where a "special use" confers a special benefit upon the locality’ " ( Seegers v. Village of Mineola, 161 A.D.3d at 911, 77 N.Y.S.3d 86, quoting Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ). The prima facie showing that a municipality must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings (seeSeegers v. Village of Mineola, 161 A.D.3d at 911, 77 N.Y.S.3d 86 ; Lima v. Village of Garden City, 131 A.D.3d 947, 948, 16 N.Y.S.3d 249 ). Here, the plaintiffs failed to allege in either the complaint or the bill of particulars that the Town made a special use of the subject pathway or that the Town created the alleged dangerous condition through an affirmative act of negligence.

"Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it" ( Larenas v. Incorporated Vil. of Garden City, 143 A.D.3d at 778, 39 N.Y.S.3d 204 [internal quotation marks omitted]; see Lopez–Calderone v. Lang–Viscogliosi, 127 A.D.3d 1143, 1145, 7 N.Y.S.3d 506 ). "The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by the plaintiff[ ] in the pleadings and bill of particulars" ( Larenas v. Incorporated Vil. of Garden City, 143 A.D.3d at 778, 39 N.Y.S.3d 204 [internal quotation marks omitted]; see Lima v. Village of Garden City, 131 A.D.3d 947, 948, 16 N.Y.S.3d 249 ; Carlucci v. Village of Scarsdale, 104 A.D.3d 797, 798–799, 961 N.Y.S.2d 318 ). Here, the plaintiff alleged in his bill of particulars that the Town negligently caused, permitted, and allowed the barricade to be placed in such a way that a part of the barricade extended out into the line of pedestrian traffic.

Hampton, 98 A.D.3d at 1008, 951 N.Y.S.2d 171 ). " ‘The prima facie showing that [a municipality is] obligated to make on its motion for summary judgment [is] governed by the allegations of liability made by the plaintiff[ ] in the pleadings and bill of particulars' " (Larenas v. Incorporated Vil. of Garden City, 143 A.D.3d at 778, 39 N.Y.S.3d 204, quoting Lima v. Village of Garden City, 131 A.D.3d 947, 948, 16 N.Y.S.3d 249 ). Here, the plaintiffs alleged that the County affirmatively caused or contributed to the dangerous condition through its snow plowing operations on Old Country Road that caused snow to be deposited onto the sidewalk.

The plaintiff alleged, in her pleadings, that the defendant negligently maintained and repaired the sidewalk and affirmatively created the defective condition that caused the accident. Thus, to establish its prima facie entitlement to judgment as a matter of law, the defendant was required to demonstrate, prima facie, both that it did not have prior written notice of the alleged defect, and that it did not create the alleged defect (see McManus v Klein, 136 AD3d 700; Lima v Village of Garden City, 131 AD3d 947, 948; Steins v Incorporated Vil. of Garden City, 127 AD3d 957, 958; Braver v Village of Cedarhurst, 94 AD3d 933, 934). The defendant made a prima facie showing of entitlement to judgment as a matter of law by providing the affidavit of the Village Clerk, which indicated that she conducted a records search and found no prior written notice of a defective condition at the location alleged by the plaintiff (see Pagano v Town of Smithtown, 74 AD3d 1304, 1305).

A municipality that has enacted a prior written notice provision may not be subjected to liability for injuries caused by a defective or dangerous condition which comes within the ambit of the law unless it has received prior written notice of the alleged defect or dangerous condition, or an exception to the prior written notice requirement applies (see Brower v County of Suffolk, 185 A.D.3d 774 [2nd Dept 2020]). Recognized exceptions to the prior written notice requirement exist where the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a special benefit upon it (see' Lima v Village of Garden City, 131 A.D.3d 947 [2nd Dept 2015]).

3. Subsequent Case Law After Braver, this Court has routinely applied Foster in this manner, and it has frequently required municipal defendants to affirmatively disprove pleaded exceptions to the applicable prior written notice law as a component of their prima facie case on a motion for summary judgment (see e.g. Pirrone v Metro N. Commuter R.R., 203 A.D.3d 1188; Holleran v Incorporated Vil. of Floral Park, 189 A.D.3d 1370, 1371-1372; Kabia v Town of Yorktown, 175 A.D.3d 1395, 1396; Eisenberg v Town of Clarkstown, 172 A.D.3d 683, 684; Seegers v Village of Mineola, 161 A.D.3d 910; Larenas v Incorporated Vil. of Garden City, 143 A.D.3d 777, 778; McManus v Klein, 136 A.D.3d 700, 701; Lima v Village of Garden City, 131 A.D.3d 947, 948; Steins v Incorporated Vil. of Garden City, 127 A.D.3d 957; Carlucci v Village of Scarsdale, 104 A.D.3d 797, 798; Miller v Village of E. Hampton, 98 A.D.3d 1007, 1008-1009; see also Burger v Brickman Group Ltd., LLC, 174 A.D.3d 568; Barone v Nickerson, 140 A.D.3d 1100; Glover v John Tyler Enters., Inc., 123 A.D.3d 882). In certain other cases, this Court has continued to apply the standard set forth by the Court of Appeals, determining that a municipal defendant satisfied its prima facie burden on a motion for summary judgment by demonstrating that it lacked prior written notice, and that the burden then shifted to the plaintiff to demonstrate the applicability of one of the recognized exceptions (see e.g. Thompson v Nassau County, 200 A.D.3d 823; Torres v Incorporated Vil. of Rockville Ctr., 195 A.D.3d 974, 975; Lichtman v Village of Kiryas Joel, 90 A.D.3d 1001, 1001; Forman v City of White Plains, 5 A.D.3d 434, 434-435; cf. Gruska v City of New York, 292 A.D.2d 49

The burden then shifted to the plaintiffs to "demonstrat[e] either that a question of fact existed in that regard or that one of the ... exceptions applied" ( Groninger v. Village of Mamaroneck, 17 N.Y.3d at 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; seeTorres v. Incorporated Vil. of Rockville Ctr., 195 A.D.3d 974, 975, 146 N.Y.S.3d 519 ; Agard v. City of White Plains, 127 A.D.3d 894, 895, 8 N.Y.S.3d 344 ). The plaintiffs' speculative assertions in opposition that the County's snow plows created the mound of snow or ice on which the injured plaintiff allegedly slipped and fell were insufficient to raise a triable issue of fact (seeDiMarco v. Coscia, 192 A.D.3d 867, 868, 140 N.Y.S.3d 757 ; Lima v. Village of Garden City, 131 A.D.3d 947, 948, 16 N.Y.S.3d 249 ). Accordingly, the Supreme Court properly granted that branch of the County's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

Here, the plaintiffs alleged in their complaint that the Village affirmatively created the defect that caused the accident. Therefore, in order to establish its prima facie entitlement to judgment as a matter of law, the Village had to demonstrate, prima facie, both that it did not have prior written notice of the defect, and that it did not create the defect (seeLoghry v. Village of Scarsdale, 149 A.D.3d 714, 715, 53 N.Y.S.3d 318 ; McManus v. Klein, 136 A.D.3d 700, 701, 24 N.Y.S.3d 205 ; Lima v. Village of Garden City, 131 A.D.3d 947, 948, 16 N.Y.S.3d 249 ). The Village established, prima facie, that it did not have prior written notice of the alleged defect, but it failed to establish, prima facie, that it did not affirmatively create the alleged defect (seeMcManus v. Klein, 136 A.D.3d at 701, 24 N.Y.S.3d 205 ; Carlucci v. Village of Scarsdale, 104 A.D.3d 797, 798–799, 961 N.Y.S.2d 318 ; Braver v. Village of Cedarhurst, 94 A.D.3d 933, 934, 942 N.Y.S.2d 178 ).