Opinion
02-03-2017
Jeffrey SIMPSON, Plaintiff–Respondent, v. CITY OF SYRACUSE, Defendant–Appellant.
Robert P. Stamey, Corporation Counsel, Syracuse (Todd M. Long of Counsel), for Defendant–Appellant. Sidney P. Cominsky, LLC, Syracuse (Sidney P. Cominsky of Counsel), for Plaintiff–Respondent.
Robert P. Stamey, Corporation Counsel, Syracuse (Todd M. Long of Counsel), for Defendant–Appellant.
Sidney P. Cominsky, LLC, Syracuse (Sidney P. Cominsky of Counsel), for Plaintiff–Respondent.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, AND CURRAN, JJ.
MEMORANDUM:
Plaintiff commenced this action seeking damages for injuries he sustained when he tripped and fell on a sidewalk owned and maintained by defendant. We agree with defendant that Supreme Court erred in denying its motion for summary judgment dismissing the complaint. Defendant met its initial burden by establishing that it did not receive prior written notice of the allegedly dangerous or defective condition of the sidewalk as required by its local law (see Craig v. Town of Richmond, 122 A.D.3d 1429, 1429, 997 N.Y.S.2d 566 ; Benson v. City of Tonawanda, 114 A.D.3d 1262, 1263, 980 N.Y.S.2d 683 ; Davison v. City of Buffalo, 96 A.D.3d 1516, 1518, 947 N.Y.S.2d 702 ), and plaintiff does not dispute the absence of prior written notice (see Craig, 122 A.D.3d at 1429, 997 N.Y.S.2d 566 ; Sola v. Village of Great Neck Plaza, 115 A.D.3d 661, 662, 981 N.Y.S.2d 545 ). The burden thus shifted to plaintiff 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 ; see Christy v. City of Niagara Falls, 103 A.D.3d 1234, 1234, 959 N.Y.S.2d 581 ; Horan v. Town of Tonawanda, 83 A.D.3d 1565, 1566–1567, 921 N.Y.S.2d 764 ). We agree with defendant that plaintiff failed to meet his burden (see Christy, 103 A.D.3d at 1234–1235, 959 N.Y.S.2d 581 ; Duffel v. City of Syracuse, 103 A.D.3d 1235, 1235–1236, 958 N.Y.S.2d 916 ). Plaintiff failed to present any evidence that the depression in the bricks was present immediately after completion of the work following removal of the temporary traffic pole (see Duffel, 103 A.D.3d at 1236, 958 N.Y.S.2d 916 ), and it is well settled that the affirmative negligence exception "does not apply to conditions that develop over time" (Horan, 83 A.D.3d at 1567, 921 N.Y.S.2d 764 ; see Christy, 103 A.D.3d at 1234–1235, 959 N.Y.S.2d 581 ; Davison, 96 A.D.3d at 1518, 947 N.Y.S.2d 702 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.