No Notice of Defect Needed Where Municipality Affirmatively Created It.

The Second Department reversed the grant of summary judgment to the defendant village because the village did not rule out the possibility that the sidewalk defect had been affirmatively created by negligent design and construction, an exception to the requirement that the village have prior notice of a sidewalk defect before a personal injury suit will be allowed:

Here, the defendant established that it did not receive prior written notice of the alleged dangerous condition. Nonetheless, it failed to demonstrate its prima facie entitlement to judgment as a matter of law. “[T]he prima facie showing which a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiff in the pleadings” … . Here, the plaintiff’s pleadings alleged that the defendant affirmatively created the dangerous condition that caused the accident through negligence in the design and construction of the sidewalk … . Under these circumstances, the defendant was required to eliminate all triable issues of fact as to whether it affirmatively created the alleged dangerous condition through negligent design and construction to sustain its prima facie burden … . The defendant failed to do so, and therefore, its motion for summary judgment should have been denied without regard to the sufficiency of the plaintiff’s opposition papers …. Carlucci v Village of Scarsdale, 2013 NY Slip Op 01798, 2012-09179, Second Dept. 3-20-13

slip and fall