Exception to Written Notice of Defect Prerequisite Did Not Apply; Question of Fact Whether Municipality Created Dangerous Condition (Gap in Bridge-Roadway)

The Fourth Department, over a dissent, determined the exception to the written notice requirement (notice to a municipality re: a dangerous condition) did not apply, but there was a question of fact whether the municipality created the dangerous condition, a gap in the roadway on a bridge, which caused the infant plaintiff to fall off his bicycle.  The Fourth Department wrote:

Where the municipality establishes that it lacked prior written notice, the burden shifts to the plaintiff to demonstrate the applicability of an exception to the rule, i.e., that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the municipality …. The affirmative negligence exception is “limited to work by the [municipality] that immediately results in the existence of a dangerous condition” ….    An omission on the part of the municipality “does not constitute affirmative negligence excusing noncompliance with the prior written notice requirement”…. We conclude that defendant met its initial burden of establishing as a matter of law that it did not receive prior written notice of any defective or dangerous condition on or near the bridge as required by Local Law No. 1 …. Viewing the evidence in the light most favorable to plaintiff, as we must …, we conclude, however, that plaintiff raised an issue of fact whether defendant created a dangerous condition that caused the accident ….  Hawley v Town of Ovid, 450, 4th Dept 7-5-13