Prior Written Notice of Defect Not Needed Where It Is Alleged Municipality Created Dangerous Condition.

In finding the plaintiff had raised a question of fact about whether the municipality affirmatively created a dangerous condition (a curved section of fence alongside a roadway), the Second Department wrote:

Where, as here, a municipality has enacted a prior written notice statute, it may not be subject to liability for personal injuries caused by a defective street or sidewalk condition absent proof of prior written notice or an exception thereto … . “The Court of Appeals has recognized two exceptions to this rule, namely, where the locality created the defect or hazard through an affirmative act of negligence [and] where a “special use” confers a special benefit upon the locality'” … .

The affirmative creation exception “[is] limited to work by the City that immediately results in the existence of a dangerous condition” … . Thus, while the eventual emergence of a dangerous condition as a result of wear and tear and environmental factors does not constitute an affirmative act of negligence …, where, as here, the allegedly dangerous condition would have been immediately apparent, the affirmative creation exception applies … . Laracuente v City of New York, 2013 NY Slip Op 01810, 2011-09475, Ind No 17543/06, Second Dept. 3-20-13