PLAINTIFF TRIPPED OVER A FOOTING FOR A TRAFFIC SIGNAL POLE WHICH HAD BEEN REMOVED; ALTHOUGH THE CITY APPROVED THE REMOVAL OF THE POLE IT PLAYED NO ROLE IN ITS REMOVAL; THEREFORE THE CITY DID NOT CREATE THE CONDITION AND THE LACK OF WRITTEN NOTICE RELIEVED THE CITY OF LIABILITY (THIRD DEPT).

The Third Department, reversing Supreme Court, determined, after a plaintiff’s verdict at trial, the defendant city’s motion for summary judgment should have been granted in this slip and fall case. Plaintiff tripped over the footing of a traffic signal pole (the pole had been removed). The city demonstrated it did not have written notice of the condition. Therefore the burden shifted to the plaintiff to show that the city created the condition. The city submitted documents showing that the removal of the pole was part of a private construction project over which the city exercised no control:

The City did not receive notice of the project’s completion or when and by whom the traffic signals were removed. Trudeau [Chief Supervisor of the Traffic Engineering Division of the Albany Police Department] testified that the City did not oversee the development project because it was a private project, and he was not aware of when the traffic signals were removed or who removed them. We note that, contrary to Supreme Court’s decision, the City’s failure to inspect the sidewalk is an omission that does not constitute affirmative negligence that excuses compliance with the prior written notice requirement … . By failing to present any proof that the City received written notice of the defect or of an affirmative act taken by the City that immediately resulted in the defective condition of the sidewalk, plaintiffs failed to raise a material issue of fact as to the exception to the prior written notice requirement … . Vnuk v City of Albany, 2021 NY Slip Op 00600, Third Dept 2-4-21