DECISION AND ORDER This is a CPLR §3212 summary judgment motion stemming from an August 22, 2013 accident which occurred while plaintiff was operating his motorcycle in a southerly direction on Burch Road in the Town of Hartford, County of Washington, State of New York (“Town”). As he rounded a bend on Burch Road north of the intersections of Darfler Road and Old Castle Green Lane, he lost control, left the roadway and crashed. The Town claims it is entitled to summary judgment due to (a) lack of prior written notice of any dangerous condition on the subject highway; (b) a lack of a special use or defect created by an affirmative act of negligence and ( c) that there are no design, construction, signage or maintenance deficiencies on Burch Road that would have caused or contributed to the accident.Plaintiff has alleged that the Town “negligently designed, constructed, maintained, signed and repaired this portion of Burch Road. More precisely, it is alleged that the Town, (a) negligently permitted the application of a shim course or a true and leveling course of asphalt to the existing surface of the roadway, (b) permitted loose stones to exist on the surface of the roadway and, (c) permitted a significant drop off with regard to the right shoulder of the roadway. Finally it is alleged that the Town failed to warn the public of these conditions.The plaintiff describes traveling on Burch Road at approximately 45 miles per hour as he approached the site of accident where “[t]here was a slight curve [in the road] with a grading…” According to the plaintiff he was seventy-five feet away from the curve at the point he first observed it, maintaining his speed with visibility so clear “you could see out to the horizon towards Vermont.” As he reached the curve the motorcycle slid sideways and the rear tire kicked to the left. As plaintiff attempted to correct the slide by bringing his bike back upright and leaning to the left the motorcycle “tires grabbed, slipped off the pavement and came down.” Although plaintiff did not know what caused the rear tire to kick out he described “two different colors of pavement” as he “came into the corner” of the roadway and believes this was a cause of his accident.In May of 2013, approximately three months prior to the accident, the Town retained a third party contractor to place a shim course on Burch Road at the area of this accident resulting in an elevation difference of 1/8″ to 3/16. Similar shim courses were placed at four other locations on Burch Road north of the accident location. The motion proponent includes an expert’s opinion that the shim course conformed to the NYSDOT Guidelines and Standards.Town of Hartford Local Law No.1 of 1995, Chapter 87-1 provides that no civil action shall be maintained against the Town absent prior written notice of the condition. More specifically:No civil action shall be maintained against the Town of Harford, New York, or the Hartford Town Superintendent of Highways for damages or injuries or property sustained by reason of any highway…being defective, out of repair, unsafe, dangerous or obstructed unless written notice of such defective, unsafe, dangerous or obstructed condition of such highway was actually given to the Town Clerk or Town Superintendent of Highways and there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of.“It is well settled that where, as here, a municipality has enacted a prior written notice statute pertaining to its thoroughfares or sidewalks, it cannot be held liable unless such written notice of the allegedly defective or dangerous condition was actually given” (Gagnon v. City of Saratoga Springs, 51 AD3d 1096, 1097 [2008], lv denied 11 NY3d 706 [2008]; see Stride v. City of Schenectady, 85 AD3d 1409, 1410 [2011]; Smith v. Village of Hancock, 25 AD3d 975, 975 [2006]; Dalton v. City of Saratoga Springs, 12 AD3d 899, 900 [2004]). Here, defendant sustains its initial evidentiary burden by submitting the affidavit of its Town Clerk indicating that she conducted a search of the relevant records covering the period prior to the date of the accident and found no written notice of a defective condition corresponding to that alleged by the plaintiff (see Guimond v. Village of Keeseville, 113 AD3d 895, 896 [2014]; Westbrook v. Village of Endicott, 67 AD3d 1319, 1319 [2009]; Gagnon v. City of Saratoga Springs, 51 AD3d at 1097; Stride v. City of Schenectady, 85 AD3d at 1410; compare Goldberger v. Village of Kiryas Joel, 31 AD3d 496 [2006]; Rupp v. City of Port Jervis, 10 AD3d 391, 392 [2004]; Koch v. Village of Lake George, 46 Misc.3d 1202(A)[ 2014].The Town’s submission of this proof through an affidavit of a municipal clerk is sufficient to demonstrate a lack of prior written notice. Palo v. Town of Fallsburg, 101 A.D.3d 1400 (3d. Dept.2012); Westbrook v. Village of Endicott, 67 A.D.3d 1319 (3d. Dept. 2009). The Town has established a prima facie case that it did not receive prior written notice of a defective condition.The burden has thus shifted to plaintiff to raise an issue of material fact regarding the applicability of a recognized exception to the prior written notice requirement” (Gagnon v. City of Saratoga Springs, 51 AD3d at 1097; see Fuhrmann v. City of Binghamton, 31 AD3d 1036, 1037 [2006]; Pagillo v. City of Oneonta, 25 AD3d 1044, 1044-1045 [2006], lv denied 7 NY3d 704 [2006]). With that said, there are two recognized exceptions to the prior written notice requirement: (1) where the municipality has created the defect through its affirmative negligence; or (2) where a special use of the property has conferred a special benefit upon the municipality (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474 [1999]; Dalton v. City of Saratoga Springs, 12 AD3d at 900). As to the first exception the affirmative negligence exception “is limited to work by the [municipality] that immediately results in the existence of a dangerous condition” (Oboler v. City of New York, 8 N.Y.3d 888, 889 [2007] [emphasis omitted], quoting Bielecki v. City of New York, 14 A.D.3d 301 [1st Dept.2005]. See also Guimond v. Village of Keeseville, 113 AD3d 895, 896 [2014]; Koch v. Village of Lake George, 46 Misc.3d 1202(A), 2014]). The Town, anticipating that plaintiff would frame the question as one of the municipality having affirmatively created a defect through an act of negligence in order to escape the prior written notice requirements supports the summary judgment motion with an expert who opines that there were no design, construction, maintenance or traffic control deficiencies on Burch Road at-and approaching-the accident site. Also, that the Town acted appropriately to ensure a smooth riding surface was provided on Burch Road when it placed this asphalt shim course to correct irregularities in the existing pavement surface. The expert extensively cites the Town’s compliance with New York State Department of Transportation maintenance guidelines and standards as well as highway sign provisions of the Manual of Uniform Traffic Control Devices.While movant again meets it’s burden of establishing a prima facie entitlement warranting summary judgment plaintiff also approaches, with equally competent evidence, the question of a defective condition having been affirmatively created by the Town.Plaintiff’s expert offers opposing opinions also extensively citing specific Work Zone Traffic Control For Local Roads Standards, and current versions of the New York State Department of Transportation Highway Design Manual, the New York State Department of Transportation Standard Specifications, the New York State Department Highway Maintenance Guidelines; the American Association of State Highway Officials policies on geometric designs of rural highways, the Manual of Uniform Traffic Control Devices, as well as referencing the Cornell Local Roads Program, all of which the expert describes as authoritative in the highway engineering field and providing guidelines for both rural town and county roadways. With similarly competent evidence in admissible form plaintiff sufficiently establishes the existence of material issues of fact mandating that a trial is necessary on specifically whether the Town affirmatively created a dangerous condition. (Oboler v. City of New York, 8 N.Y.3d 888, 889 [2007], quoting Bielecki v. City of New York, 14 A.D.3d 301 [1st Dept.2005]; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]; Guimond v. Village of Keeseville, 113 AD3d 895, 896 [2014]; Koch v. Village of Lake George, 46 Misc.3d 1202(A), 2014]).While the Court recognizes the affirmative negligence exception “is limited to work by the [municipality] that immediately results in the existence of a dangerous condition” (Oboler v. City of New York, 8 N.Y.3d 888, 889 [2007] [emphasis omitted], quoting Bielecki v. City of New York, 14 A.D.3d 301 [1st Dept.2005]) it is clear that some of the defects alleged such as the existence of an uneven surface, the drop-off depth, or the adequacy of signage-if that is what the finder of fact should conclude-are conditions that would, one presumes, have existed immediately upon the completion of the repair work. Put otherwise, there are triable issues of fact as to whether the application of the shim course on Burch Road “immediately result[ed] in the existence of a dangerous condition” that caused plaintiff’s accident (Yarborough v. City of New York, 10 N.Y.3d 726, 728, [2008] [internal quotation marks and citations omitted]; see Herzog v. Schroeder, 9 A.D.3d 669, 671 [2004]).1The defendant’s extensive reply submissions only reinforce the conclusion that material issues of fact exist.Therefore, having considered the Affirmation of Joshua D. Lindy, Esq. dated April 20, 2018 together with Exhibits “A” through “J”, the Memorandum of Law of Joshua D. Lindy, Esq. dated April 20, 2018, the Affirmation in Opposition of Dana M. Boniewski, Esq. dated June 20, 2018 together with Exhibits “A” and “B”, the Memorandum of Law of Dana M. Boniewski, Esq. dated June 20, 2018, the Affidavit of Ronald A. Bova, P.E., sworn to June 20, 2018 together with Exhibits “A” through “T”, and the Reply Affirmation of Joshua D. Lindy, Esq. dated July 13, 2018 together with Exhibits “A” and “B”, and oral argument having been heard on August 31, 2018, with Dana M. Boniewski, Esq. appearing on behalf of plaintiff and Joshua D. Lindy, Esq. appearing on behalf of defendant, it is herebyORDERED that the motion for summary judgment of defendant Town of Hartford is denied in its entirety; and it is furtherORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.The above constitutes the Decision and Order of this Court.The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated April 23, 2018. Counsel for the plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.Dated: September 7, 2018Lake George, New York
