Prior Written Notice Requirement Does Not Apply When It Is Alleged the Municipality Created the Dangerous Condition

The Second Department noted that the “written notice of a dangerous condition” pre-requisite for municipal liability does not apply when it is alleged the municipality created the dangerous condition:

A municipality that has enacted or is subject to a prior written notice statute, such as Village Law § 6-628 or CPLR 9804, may not be subjected to liability for injuries caused by a defective or dangerous condition that comes within the ambit of those laws, such as an alleged defective boardwalk …, unless it has received written notice of the defect, or an exception to the written notice requirement applies … . The only two recognized exceptions to the prior written notice requirement are where the municipality created the defect through an affirmative act of negligence, or where the defect resulted from a special use of the property by the municipality which conferred a special benefit on it … . Moreover, “the affirmative negligence exception is limited to work by the [municipality] that immediately results in the existence of a dangerous condition'” … .

Where, as here, the plaintiff expressly asserted in the complaint or a bill of particulars that the municipality created the defective condition by an affirmative act of negligence, the municipality, in order to make a prima facie showing in support of a motion for summary judgment, must demonstrate that it did not create the condition … . Joyce v Village of Saltaire, 2015 NY Slip Op 01925, 2nd Dept 3-11-15