BURKE v. CITY OF ROCHESTER (2018)

MEMORANDUM AND ORDER

Plaintiff commenced this action seeking damages for injuries that she allegedly sustained when she stepped into a snow covered area between the street curb and the sidewalk in front of her home.  She alleges that her foot went through the snow and into a sinkhole, causing, inter alia, injuries to her knee.  A year earlier, defendant performed a “lawn cut” in the area where plaintiff fell, and plaintiff alleges that defendant's negligence in performing the work resulted in a dangerous or defective condition.  We agree with defendant that Supreme Court erred in denying its motion for summary judgment dismissing the complaint.

Defendant met its initial burden on the motion by establishing that it did not receive prior written notice of the allegedly dangerous or defective condition as required by Rochester City Charter § 7–13 (see Pulver v. City of Fulton Dept. of Pub. Works, 113 A.D.3d 1066, 1066, 979 N.Y.S.2d 431 [4th Dept. 2014];  Hall v. City of Syracuse, 275 A.D.2d 1022, 1023, 713 N.Y.S.2d 384 [4th Dept. 2000] ) and, in opposition to the motion, plaintiff did not dispute the absence of prior written notice.  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 [2008] [internal quotation marks omitted];  see Simpson v. City of Syracuse, 147 A.D.3d 1336, 1337, 46 N.Y.S.3d 347 [4th Dept. 2017];  Christy v. City of Niagara Falls, 103 A.D.3d 1234, 1234, 959 N.Y.S.2d 581 [4th Dept. 2013] ).  We agree with defendant that plaintiff failed to meet her burden (see Simpson, 147 A.D.3d at 1337, 46 N.Y.S.3d 347;  Christy, 103 A.D.3d at 1235, 959 N.Y.S.2d 581;  Horan v. Town of Tonawanda, 83 A.D.3d 1565, 1567, 921 N.Y.S.2d 764 [4th Dept. 2011] ).  Although plaintiff submitted evidence that defendant may have created the sinkhole by improperly excavating and backfilling the excavated area, we agree with defendant that plaintiff failed to proffer evidence that the depression “was present immediately after completion of the work” (Simpson, 147 A.D.3d at 1337, 46 N.Y.S.3d 347 [emphasis added] ).  Indeed, it is well settled that the affirmative negligence exception “ ‘does not apply to conditions that develop over time’ ” (id.;  see Christy, 103 A.D.3d at 1234–1235, 959 N.Y.S.2d 581;  Horan, 83 A.D.3d at 1567, 921 N.Y.S.2d 764).

In light of our determination, plaintiff's cross motion to compel certain depositions must be denied as moot (see State of New York v. Peerless Ins. Co., 108 A.D.2d 385, 392, 489 N.Y.S.2d 213 [1st Dept. 1985], affd 67 N.Y.2d 845, 501 N.Y.S.2d 651, 492 N.E.2d 779 [1986] ), and we do not reach defendant's remaining contentions.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the cross motion is denied, the motion is granted and the complaint is dismissed.

Memorandum: