BROOKS v. VILLAGE OF FAIRPORT (2023)

MEMORANDUM AND ORDER

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

Memorandum: Plaintiff commenced this negligence action seeking damages for injuries that she allegedly sustained when she tripped and fell on a raised crack in a sidewalk slab purportedly caused by the roots of a curbside tree planted in an area adjacent to the sidewalk slab. Plaintiff, as limited by her brief, appeals from an order insofar as it granted defendant's motion for summary judgment dismissing the complaint. We affirm.

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 Village Law § 6-628 and the Code of the Village of Fairport § 336-1 (see Franklin v. Learn, 197 A.D.3d 982, 983, 153 N.Y.S.3d 364 [4th Dept. 2021], lv denied 37 N.Y.3d 918, 2022 WL 402513 [2022]; see generally Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008]), and plaintiff does not dispute on appeal the absence of prior written notice (see Yarborough, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873; Simpson v. City of Syracuse, 147 A.D.3d 1336, 1337, 46 N.Y.S.3d 347 [4th Dept. 2017]).

The burden thus shifted to plaintiff to raise a triable question of fact, as relevant here, as to 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; see Horst v. City of Syracuse, 191 A.D.3d 1297, 1301, 141 N.Y.S.3d 205 [4th Dept. 2021]; Simpson, 147 A.D.3d at 1337, 46 N.Y.S.3d 347). Plaintiff failed to meet that burden. Even assuming, arguendo, that the affidavit of plaintiff's expert and other submissions are sufficient to establish that the defect in the sidewalk was caused by the growth of roots of a curbside tree that was planted and maintained by defendant, defendant's planting of the tree coupled with its subsequent “failure to control the roots of the tree, would at most constitute nonfeasance, not affirmative negligence” (Lowenthal v. Theodore H. Heidrich Realty Corp., 304 A.D.2d 725, 726, 759 N.Y.S.2d 497 [2d Dept. 2003]; see Monteleone v. Incorporated Vil. of Floral Park, 74 N.Y.2d 917, 919, 550 N.Y.S.2d 257, 549 N.E.2d 459 [1989]; Dragonetti v. 301 Mar. Ave. Corp., 180 A.D.3d 870, 871, 116 N.Y.S.3d 606 [2d Dept. 2020]; Zizzo v. City of New York, 176 A.D.2d 722, 723, 574 N.Y.S.2d 966 [2d Dept. 1991]; see also Oswald v. City of Niagara Falls, 13 A.D.3d 1155, 1157, 787 N.Y.S.2d 757 [4th Dept. 2004]). Additionally, even if defendant's alleged conduct constituted affirmative negligence, plaintiff still “failed to raise a triable question of fact as to whether [defendant] created a defective condition within the meaning of the exception, which requires that the affirmative negligence of [defendant] immediately result 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). As plaintiff's own expert acknowledged, the defect in the sidewalk developed over time, not immediately, as a result of the gradual growth of the tree roots (see id.; Burke v. City of Rochester, 158 A.D.3d 1218, 1219, 70 N.Y.S.3d 271 [4th Dept. 2018]).