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THE CITY DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE OPEN MANHOLE PLAINTIFF DROVE OVER; PLAINTIFF UNSUCCESSFULLY TRIED TO RAISE, FOR THE FIRST TIME, AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT IN RESPONSE TO THE CITY’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the municipality proved it did not have written notice of the road defect and plaintiff’s attempt to raise for the first time an exception to the written notice requirement in response to the summary judgment motion was improper:

The plaintiff allegedly was injured when she drove her vehicle over an uncovered manhole … .

“A municipality that has enacted a prior written notification law may avoid liability for a defect or hazardous condition that falls within the scope of the law if it can establish that it has not been notified in writing of the existence of the defect or hazard at a specific location” … . “Such [prior written] notice is obviated where the plaintiff demonstrates that the municipality ‘created the defect or hazard through an affirmative act of negligence’ or that a ‘special use’ conferred a benefit on the municipality” … .

Here, the plaintiff did not dispute that the defendants established, prima facie, that they had no prior written notice of the alleged roadway defect. In opposition, the plaintiff instead argued that the special use exception applied. The plaintiff, however, failed to allege that exception in either the notice of claim or the complaint … . Therefore, that new theory of liability was improperly raised in opposition to the defendants’ motion for summary judgment dismissing the complaint … . Anderson v City of New York, 2025 NY Slip Op 00414, Second Dept 1-29-25

Practice Point: Here plaintiff raised an exception to the written-notice prerequisite to municipal liability for road defects for the first time in response to the municipality’s motion for summary judgment. That is too late. The exception should be raised in the notice of claim and/or the complaint.

 

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