HERNANDEZ v. CITY OF SYRACUSE (2018)

MEMORANDUM AND ORDER

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

Memorandum:  Plaintiff broke her ankle when she tripped on a deformed sidewalk in defendant City of Syracuse.  Plaintiff thereafter commenced this negligence action, and defendant moved for summary judgment dismissing the complaint on the ground that it did not receive prior written notice of the alleged defect.  Supreme Court denied the motion, and we now reverse.

Defendant met its initial burden on the motion by establishing that it did not receive prior written notice of the allegedly defective sidewalk as required by Syracuse City Charter § 8–115 (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008];  Craig v. Town of Richmond, 122 A.D.3d 1429, 1429, 997 N.Y.S.2d 566 [4th Dept. 2014];  Hall v. City of Syracuse, 275 A.D.2d 1022, 1023, 713 N.Y.S.2d 384 [4th Dept. 2000] ).  Contrary to plaintiff's contention, “it is well established that [a] ‘verbal or telephonic communication to a municipal body that is reduced to writing [does not] satisfy a prior written notice requirement’ ” (Tracy v. City of Buffalo, 158 A.D.3d 1094, 1094, 68 N.Y.S.3d 618 [4th Dept. 2018], quoting Gorman v. Town of Huntington, 12 N.Y.3d 275, 280, 879 N.Y.S.2d 379, 907 N.E.2d 292 [2009] ), and “it is not this Court's prerogative to overrule or disregard a precedent of the Court of Appeals” (Calcano v. Rodriguez, 91 A.D.3d 468, 469, 936 N.Y.S.2d 185 [1st Dept. 2012] ).  Contrary to the court's determination, “constructive notice of the allegedly dangerous condition is not an exception to the requirement of prior written notice contained in the [Syracuse] City Charter” (Hall, 275 A.D.2d at 1023, 713 N.Y.S.2d 384;  see Amabile v. City of Buffalo, 93 N.Y.2d 471, 475–476, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999] ).

In opposition, plaintiff failed to raise a triable issue of fact concerning whether defendant “affirmatively created the defect through an act of negligence ․ that immediately result[ed] in the existence of a dangerous condition” (Yarborough, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [internal quotation marks omitted] ), and mere “speculation that [defendant] created the allegedly dangerous condition is insufficient to defeat the motion” (Hall, 275 A.D.2d at 1023, 713 N.Y.S.2d 384;  see Mallory v. City of New Rochelle, 41 A.D.3d 556, 557, 836 N.Y.S.2d 426 [2d Dept. 2007] ).

We have considered and rejected plaintiff's various challenges to the admissibility of the affidavits of defendant's employees.  Defendant's remaining contentions are academic in light of our determination.