Following exhaustive litigation, a Central New York city recently prevailed on appeal against a plaintiff who sought damages for injuries she allegedly sustained from stepping in a plywood-covered hole in her yard. In this case, decided on January 3, 2014, the New York Appellate Division, Fourth Department, reversed a trial court decision and showed strict adherence to the requirement that a plaintiff show prior written notice of a defective condition in order to bring an action against the city — reinforcing favorable precedent and strengthening the ability of municipalities across the state to defend against such actions. Lisa M. Robinson of Goldberg Segalla’s Municipal and Governmental Liability Practice Group successfully defended the city in this case.

The plaintiff allegedly was injured in May 2009 from falling into a hole adjacent to a deteriorating catch basin between the edge of the street and the sidewalk. While mowing this patch of her yard, she noticed a piece of plywood but, rather than moving plywood so she could safely continue mowing, she pushed the mower over it. Her left leg went into the hole and she sustained a fractured ankle.

The charter for this city requires prior written notice to the City Clerk in order to commence a proceeding against the city. While it was undisputed that, prior to her incident, the clerk did not receive prior written notice of any hole in the plaintiff’s yard, or that a piece of plywood had been placed over the hole, the plaintiff introduced through extensive discovery a plethora of seemingly contradictory (and often irrelevant) testimony in order to create the appearance a question of fact as to whether the city created the condition that allegedly caused the injury.

After discovery, the defendant city and its Department of Public Works moved for summary judgment on the basis that the plaintiff had not met the prior written notice requirement set forth in the City Charter. The plaintiff then filed a cross-motion for summary judgment on the basis that prior written notice was not required in this case, asserting that the affirmative act exception applied because the city had created the defective condition by placing plywood over the hole. The New York State Supreme Court of Oswego County denied both the defendants’ motion and the plaintiff’s cross-motion.

But on appeal, in a 4–1 decision, the New York Appellate Division, Fourth Department, modified the Supreme Court’s decision and ruled in favor of the defendants — thereby dismissing the action and bringing an end to the matter for our clients. The Fourth Department held that the defendants successfully established that the prior written notice was indeed applicable and there was no prior written notice to the City Clerk as required. As a result, the burden shifted to the plaintiff to establish that a question of fact existed as to whether the city’s affirmative acts had created the defective condition. The court determined that the plaintiff failed to raise an issue of fact as to whether the city had created the defective condition.

The decision reinforces the favorable precedent set by the New York Court of Appeals in Gorman v. Town of Huntington, 12 N.Y.3d 275 (2009) and highlights a key point of defense strategy for municipalities: In a personal injury action, once a municipality has shown that the plaintiff failed to meet a prior written notice requirement, the burden of proof shifts to the plaintiff to provide sufficient evidence in the record to show the municipality created the dangerous condition.