Opinion
06-16-2016
John SHUFELDT, Appellant, v. CITY OF KINGSTON, Respondent.
William D. Pretsch, Kingston, for appellant. Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Michael T. Cook of counsel), for respondent.
William D. Pretsch, Kingston, for appellant.
Cook, Netter, Cloonan, Kurtz & Murphy, PC, Kingston (Michael T. Cook of counsel), for respondent.
Before: McCARTHY, J.P., GARRY, EGAN JR., DEVINE and AARONS, JJ.
Opinion
GARRY, J. Appeal from an order of the Supreme Court (Mott, J.), entered January 13, 2015 in Ulster County, which granted defendant's motion for summary judgment dismissing the complaint.
In October 2011, plaintiff fell from his bicycle and was knocked unconscious while riding down a hill on Fair Street in the City of Kingston, Ulster County. Upon returning to the scene the next day, plaintiff observed what he believed to be a blood stain on the roadway and a recessed water valve in the pavement uphill from that location. Plaintiff thereafter commenced this action alleging that defendant was negligent by not properly covering the recessed water valve, thus creating a hazardous depression in the roadway that caused him to be propelled off his bicycle. Following discovery, defendant moved for summary judgment dismissing the complaint, and Supreme Court granted the motion. Plaintiff appeals.
It is undisputed that defendant had enacted a prior written notice provision, and that no written notice had been received by defendant regarding the alleged defect. Plaintiff relies upon the exception from the notice requirement for defects that are immediately created by a municipality's affirmative acts of negligence (see Oboler v. City of New York, 8 N.Y.3d 888, 889–890, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [2007] ; Guimond v. Village of Keeseville, 113 A.D.3d 895, 896, 978 N.Y.S.2d 431 [2014] ; Boice v. City of Kingston, 60 A.D.3d 1140, 1141, 874 N.Y.S.2d 319 [2009] ). In this regard, he argues that defendant affirmatively created the dangerous condition when it assumed supervisory authority over the repaving of the subject roadway, which had occurred a few months before his accident.
In support of its motion, defendant submitted the deposition testimony and affidavit of its Superintendent of Public Works; he stated that he had inspected the subject roadway “before, during, and after” the paving project, that the paving conformed to state and city standards for roadway paving, and that the area of the roadway where the recessed water valve was located was “in better condition” following the paving project. As to the water valve, the Superintendent asserted that it was required to be recessed into the roadway, to prevent it from being dislodged by snow plows.
In a reply affidavit, the Superintendent clarified this assertion by explaining that the depth of the recessed water valve had remained the same or was slightly decreased as a result of the paving project.
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In opposition to the motion, plaintiff submitted photographs and an affidavit describing his own measurements of the recessed water valve, with a depth of two to three inches “depending upon where you measured.” Plaintiff also submitted the affidavit of an expert in roadway engineering and design. With no reference to any standards or authority, this expert opined, in conclusory fashion, that “with new paving the nut of the water valve should be basically flush with pavement.” He then concluded that the water valve was defective, based upon his review of photographs and plaintiff's testimony that “the hole surrounding the nut of the water valve was two (2) to three (3) inches below the pavement” (emphasis added). Among other things, this evidence lacks “any semblance of a foundation to support his opinion or the existence of common knowledge and practice within the [roadway construction] industry” and, thus, lacks probative value (Phillips v. McClellan St. Assoc., 262 A.D.2d 748, 749–750, 691 N.Y.S.2d 598 [1999] ; see Smith v. Allen, 124 A.D.3d 1128, 1131, 2 N.Y.S.3d 647 [2015] ; Maurer v. John A. Coleman Catholic High School, 91 A.D.3d 1168, 1169, 937 N.Y.S.2d 419 [2012] ). In addition, plaintiff failed to provide any evidence that the paving project had, in fact, increased the depth of the recessed water valve or otherwise exacerbated any hazard (see Kushner v. City of Albany,
27 A.D.3d 851, 852, 811 N.Y.S.2d 796 [2006], affd. 7 N.Y.3d 726, 818 N.Y.S.2d 182, 850 N.E.2d 1157 [2006] ). Plaintiff's proof thus failed to raise any triable issue of fact with respect to whether defendant's actions affirmatively created a dangerous condition, such that prior written notice of the alleged defect was not required (see Brooks v. Village of Horseheads, 14 A.D.3d 756, 757, 788 N.Y.S.2d 437 [2005] ). Accordingly, we find that summary judgment was properly granted.
ORDERED that the order is affirmed, without costs.
McCARTHY, J.P., EGAN JR., DEVINE and AARONS, JJ., concur.