IN THIS SIDEWALK SLIP AND FALL CASE, THE TOWN DID NOT HAVE WRITTEN NOTICE OF THE DEFECT AND THE TOWN DEMONSTRATED THE “CREATION OF THE DEFECT” EXCEPTION TO THE WRITTEN-NOTICE REQUIREMENT DID NOT APPLY; THE DEFECT WAS THE RESULT OF DETERIORATION OF THE REPAIRED AREA OVER A 10-YEAR PERIOD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town demonstrated it did not create the sidewalk condition which allegedly caused plaintiff’s slip and fall. Rather the sidewalk repair was done by the town 10 years ago and the current deteriorated condition had developed over time:

The Court of Appeals “has recognized only two exceptions to the statutory rule requiring prior written notice, 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” Only the affirmative negligence exception is implicated in this case, and it “‘is limited to work [done] by [a municipality] that immediately results in the existence of a dangerous condition'” … . The defendant was not required to eliminate all triable issues of fact with respect to the affirmative negligence exception to the prior written notice rule in order to satisfy its prima facie burden … . Nevertheless, the defendant did eliminate all triable issues of fact with respect to that exception. In particular, the defendant submitted an affidavit of its employee, John Carroll, who averred that the asphalt patch would have been “rolled smooth and level to remove any existing tripping hazard between the two existing concrete slabs,” but now, “the tar was eroded from the patch” and “[p]ortions of the asphalt patch . . . appear to be missing.” Based on Carroll’s “observation of the asphalt repair as it exist[ed] in 2019,” he believed that the repair was “[more than] 10 years old” and that its separation from the concrete slabs “would be caused by natural erosion, wear and tear over time, and/or in this case tree roots causing the concrete slabs to uplift, not by the method of its installation.” Parthesius v Town of Huntington, 2022 NY Slip Op 06254, Second Dept 11-9-22

Practice Point: A municipality will be responsible for a sidewalk slip and fall only when the town was notified of the defect in writing. There are two exceptions. Plaintiff argued the negligent-repair exception applied here. But that exception only applies to defects immediately resulting from a repair. Here the town demonstrated the repair was not properly 10 years ago and the defect developed over time.