CARPENTER v. City of Geneva, Defendant-Respondent-Appellant. (2006)

 Plaintiff commenced this action seeking damages for injuries he sustained when he tripped and fell while walking on the side of a street in the City of Geneva (defendant) and was struck by a vehicle driven by defendant Arthur J. Rapini.   Supreme Court properly granted that part of the motion of defendant for summary judgment seeking dismissal of the complaint against it insofar as plaintiff alleges that defendant was negligent in failing to provide a sidewalk at the location where plaintiff fell and in failing to maintain the drainage grate that caused plaintiff to trip and fall.   Plaintiff concedes that defendant did not receive the requisite prior written notice of the allegedly defective condition of the roadway that is required with respect to plaintiff's allegations of nonfeasance (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 473-474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  see generally Kiernan v. Thompson, 73 N.Y.2d 840, 842, 537 N.Y.S.2d 122, 534 N.E.2d 39).   Prior written notice is not required, however, with respect to plaintiff's allegations that defendant affirmatively created the dangerous conditions (see Amabile, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Steuer v. Town of Amherst, 300 A.D.2d 1104, 1105, 753 N.Y.S.2d 257;  Merchant v. Town of Halfmoon, 194 A.D.2d 1031, 1032, 599 N.Y.S.2d 687) and, by his expert's affidavit, plaintiff raised a triable issue of fact with respect to those allegations sufficient to defeat that part of defendant's motion (see Merchant, 194 A.D.2d at 1032-1033, 599 N.Y.S.2d 687).   Finally, we note that defendant in addition sought summary judgment dismissing the complaint against it on the ground that its alleged negligence was not a proximate cause of the accident.   The record establishes, however, that there is an issue of fact with respect to proximate cause based on the sworn statement of an eyewitness who stated therein that it “looked like [plaintiff] was avoiding something in the road” when he stepped into the roadway (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).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: