Malek v. Vill. of Depew

• Decision Date: 22 December 2017
• Docket Number: CA 17–00826,1347
• Citation: 156 A.D.3d 1412,65 N.Y.S.3d 843 (Mem)
• Parties: James MALEK, Plaintiff–Respondent, v. VILLAGE OF DEPEW, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1412

65 N.Y.S.3d 843 (Mem)

James MALEK, Plaintiff–Respondent,

v.VILLAGE OF DEPEW, Defendant–Appellant.

1347

CA 17–00826

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: December 22, 2017

LAW OFFICES OF JOHN WALLACE, BUFFALO (ALYSON C. CULLITON OF COUNSEL), FOR DEFENDANT–APPELLANT.

COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO (A. PETER SNODGRASS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.

PRESENT: WHALEN, P.J., PERADOTTO, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.

MEMORANDUM AND ORDERMemorandum:

Plaintiff commenced this action to recover damages for injuries that he sustained when his foot fell through the pavement adjacent to a storm drain that was located in defendant Village of Depew. At the outset, we note that plaintiff was entitled to amend his bill of particulars once as of course before the filing of a note of issue (see CPLR 3042[b] ), and thus his cross motion for leave to amend the bill of particulars "should have been denied as unnecessary" ( Leach v. North Shore Univ. Hosp. at Forest Hills, 13 A.D.3d 415, 416, 787 N.Y.S.2d 65 [2d Dept. 2004] ).

Nevertheless, we agree with defendant that Supreme Court erred in denying its motion for summary judgment dismissing the complaint. "Prior written notice of a defective or unsafe condition of a road or bridge is a condition precedent to an action against a municipality that has enacted a prior notification law" ( Hawley v. Town of Ovid, 108 A.D.3d 1034, 1034–1035, 969 N.Y.S.2d 641 [4th Dept. 2013] ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999] ). There is no dispute that defendant established that it lacked prior written notice, thus shifting the burden to plaintiff to demonstrate that an exception to the general rule is applicable (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] ; Hawley, 108 A.D.3d at 1035, 969 N.Y.S.2d 641 ). Such an exception exists where "the municipality affirmatively created the defect through an act of negligence" ( Hawley, 108 A.D.3d at 1035, 969 N.Y.S.2d 641 ; see Yarborough, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ). That exception, however, applies only "to work by the [municipality] that immediately results in the existence of a dangerous condition" ( Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [2007] [internal quotation marks omitted]; see Hawley, 108 A.D.3d at 1035, 969 N.Y.S.2d 641 ). Here, plaintiff failed to raise an issue of fact because his expert opined that the dangerous condition developed over time as a result of the intake of storm water, not that the dangerous condition was the immediate result of allegedly negligent work (see Bielecki v. City of New York, 14 A.D.3d 301, 301–302, 788 N.Y.S.2d 67 [1st Dept....