Question of Fact Whether the Municipality Created the Road Defect Thereby Negating the Notice Requirement—Question of Fact Whether Plaintiff Sufficiently Identified Cause of Fall

The Fourth Department determined the requirement that the municipality be notified of a road defect before liability can attach did not preclude suit because there was a question of fact whether the municipality created the defect. The court also determined the plaintiff’s identification of the cause of the fall from his bicycle was sufficient to allow a jury to identify the cause without resort to speculation:

Contrary to defendant’s contention, the court properly denied that part of its motion seeking dismissal of the complaint on the ground that it did not receive prior written notice of any defective or dangerous condition. Defendant asserted on its motion, and plaintiff conceded, that defendant did not have any such notice (…see generally Village Law § 6-628). Therefore, this case turns on whether defendant created the allegedly defective or dangerous condition with an “affirmative act of negligence” … . Here, plaintiff’s expert opined that the dangerous condition was caused by the intentional removal of paving material from the area adjacent to the water valve box cover at the time the roadway was resurfaced, and we therefore conclude that “plaintiff raised an issue of fact whether defendant created a dangerous condition that caused the accident” … . * * *

Although a defendant ” may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff cannot identify the cause of his or her fall’ without engaging in speculation” …, we conclude that defendant failed to meet that burden here … . In support of its motion, defendant submitted plaintiff’s deposition testimony and plaintiff’s testimony from a hearing pursuant to General Municipal Law § 50-h, in which plaintiff testified that the accident occurred after the front wheel of the bicycle hit something on the roadway. Although plaintiff could not remember seeing the object with which he collided, he testified that the accident occurred in the immediate vicinity of a gap in the pavement adjacent to a water valve box cover, “thereby rendering any other potential cause of [his] fall sufficiently remote or technical to enable [a] jury to reach [a] verdict based not upon speculation, but upon the logical inferences to be drawn from the evidence’ ” … . Swietlikowski v Village of Herkimer, 2015 NY Slip Op 07405, 4th Dept 10-9-15