Plaintiffs commenced this action seeking to recover damages for personal injuries plaintiff Douglas Soffey (“plaintiff”) sustained in an incident that occurred on June 1, 2016, at approximately 8:00 PM, at the downstream side of a culvert pipe located under Hardscrabble Road in the Town of Chester, Warren County. Plaintiff had been fishing with friends on Bird Pond, a privately owned water body. Plaintiff was in a canoe with one of his friends and his dog. When the friend and dog jumped out of the canoe, the canoe tipped, plaintiff fell out of the canoe and his right leg struck the end of the culvert pipe, causing a laceration to his lower right leg. Plaintiff was familiar with the area of the culvert, having used the area on numerous occasions to access Bird Pond. Plaintiff had launched his canoe next to the culvert pipe and had returned to the same location to exit the water with the canoe. Plaintiffs allege that the culvert was hazardous and dangerous and that the incident occurred due to the negligence of the Town. Specifically, plaintiffs contend that the Town installed a metal culvert pipe with “razor sharp” edges, failed to furnish any warnings concerning the hazards of contact with the culvert or pipe and maintained such a hazardous condition when the Town knew, or should have known, of the hazard. Plaintiffs claim that the Town caused and created the dangerous condition by installing the culvert with the defective condition, maintaining the condition and failing to safeguard or warn against the condition. The Town moves for summary judgment dismissing plaintiffs’ complaint, with prejudice, pursuant to CPLR 3212. In deciding the motion, the Court has reviewed and considered the following: the affidavit of Shawn T. Nash, Esq., sworn to January 10, 2020, with exhibits, including the affidavit of Gary Clark, sworn to January 8, 2020, and the affidavit of Mindy Conway, sworn to September 5, 2019, in support of the motion; the affirmation of Joseph E. Soffey, Esq., dated March 10, 2020, with exhibits, the unsigned affidavit of Douglas M. Soffey, dated March 10, 2020, the affidavit of Roger Wydler, sworn to February 18, 2020, with exhibits, the affidavit of Paul Grappone, sworn to February 17, 2020, with exhibits, and the affidavit of T. Rao Tipirneni, sworn to March 12, 2020, with exhibit, in opposition to the motion; the reply affirmation of Shawn T. Nash, Esq., dated May 20, 2020, and the reply affidavit of Gary Clark, sworn to May 13, 2020, in further support of the motion; plaintiffs’ undated supplemental brief, in further opposition; and the correspondence from defendant’s counsel, Shawn T. Nash, Esq., dated July 9, 2020, with attachment, in further support of the motion. “It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Once the movant makes the proper showing, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. The facts must be viewed in the light most favorable to the non-moving party. However, bald, conclusory assertions or speculation and a shadowy semblance of an issue are insufficient to defeat summary judgment, as are merely conclusory claims.” (Stonehill Capital Mgt., LLC v. Bank of the W., 28 NY3d 439, 448 [2016] [internal brackets, quotation marks and citations omitted].) The Town maintains that it is entitled to summary judgment as it did not receive prior written notice of any allegedly defective, unsafe or dangerous condition of the culvert and the affirmative negligence exception to the prior written notice rule does not apply. The Town relies upon Town Law §65-a, which provides that an action for personal injuries against a town due to an alleged defective, unsafe or dangerous condition of a culvert may not be maintained unless written notice of such alleged condition was actually given to the town clerk or town superintendent of highways. The Town also argues that, at best, the culvert deteriorated over the 30 years that elapsed between its installation and the subject incident and the exception to the prior written notice requirement for a condition created by the municipality does not apply. In addition, the Town contends that it is entitled to summary judgment pursuant to General Obligations Law §9-103, which shields a property owner or occupant from liability for ordinary negligence where members of the public are permitted to enter the property to engage in certain recreational activities.1 In opposition, plaintiffs contend that the facts of this case compel the Court to apply the exception to the notice rule where the hazard is caused by the affirmative negligence of the municipality. Plaintiffs allege that the Town was negligent in installing a steel galvanized culvert in an area which is a launching site used by fisherman and hunters to access Bird Pond. Plaintiffs claim that the unprotected open (downstream) end of the culvert where the incident occurred is a hazard to anyone in the water or on the land immediately adjacent to the culvert at that location and a simple grate or guard could have prevented plaintiff’s accident. Plaintiffs further allege, based upon the affidavit of a metallurgist that the culvert pipe was cut, which produced sharp edges and, thus, the culvert was capable of causing injury at the time it was installed and constitutes a continuing hazard. In their opposition, plaintiffs did not offer any argument with respect to the application of General Obligations Law §9-103. However, in a supplemental brief, submitted with the Court’s permission, plaintiffs contend that General Obligations Law §9-103 is not applicable in this instance as no purpose would be served by application of the statute. The Court will first address the issue of whether the Town is entitled to immunity pursuant to General Obligations Law §9-103. “General Obligations Law §9-103 grants immunity for ordinary negligence to landowners who permit members of the public to come on their property to engage in several enumerated recreational activities” (Sena v. Town of Greenfield, 91 NY2d 611, 615 [1998] [internal quotation marks and citations omitted]; Matter of McCarthy v. New York State Canal Corp., 244 AD2d 57, 58 [3d Dept 1998]), including fishing and canoeing (General Obligations Law §9-103 [1] [a], [b]). Exceptions to the protection provided by the statute exist for facilities supervised by the municipality (see McCarthy, 244 AD2d at 59, citing Ferres v. City of New Rochelle, 68 NY2d 446, 453 [1986] and Sena, 91 NY2d at 616), as well as “for willful or malicious failure to guard, or to warn against, a dangerous condition,…” (General Obligations Law §9-103 [2] [a]). The Town argues that it is entitled to the protection of the statute as plaintiff was engaged in two of the enumerated recreational activities and neither of the exceptions apply. Specifically, the Town asserts it does not operate, supervise or maintain Bird Pond or the purported access to it which plaintiff and his friends used. Further, there is no evidence, nor do plaintiffs even allege, that the Town engaged in any willful or malicious failure to warn. The Town met its burden to demonstrate that it is immune from liability in this action pursuant to General Obligations Law §9-103 and is entitled to judgment as a matter of law. In opposition, plaintiffs failed to meet their burden to raise a material issue of fact. Defendant is, therefore, entitled to summary judgment dismissing plaintiffs’ complaint. Even assuming, arguendo, the Town is not afforded immunity under General Obligations Law §9-103, defendant is entitled to summary judgment on the remaining ground for relief asserted by defendant, lack of prior written notice. Where a municipality has enacted a prior written notice statute, it cannot be held liable for damages resulting from an injury arising from a defective or dangerous condition on its roadways, bridges, culverts or sidewalks without prior written notice of the allegedly defective or dangerous condition (see, e.g., Cook v. City of Amsterdam, 1421 [3d Dept 2019]; Hockett v. City of Ithaca, 149 AD3d 1378, 1379 [3d Dept 2017]). Thus, pursuant to Town Law §65-a, plaintiffs may not maintain this action unless written notice of the alleged defective, unsafe or dangerous condition of the culvert was actually given to the Town Clerk or Town Superintendent of Highways. It is uncontested that the Town never received any notice of an alleged defective, unsafe and/or dangerous condition of the culvert. In support of its motion, the Town has submitted the affidavits of Gary Clark, the former Highway Superintendent (“Mr. Clark”), who oversaw the installation of the culvert, and Mindy Conway, the Town Clerk for the Town of Chester (“Ms. Conway”). Mr. Clark avers that he did not receive written notice regarding the culvert at issue. In her affidavit, Ms. Conway avers that the office of the Town Clerk maintains written notices which have been received pursuant to Town Law §65-a for a period in excess of 25 years. Ms. Conway further represents that she searched the files maintained by the Town Clerk’s office and her review did not reveal any written notice of an allegedly defective, dangerous and/or unsafe condition of the culvert which was received by the office directly or from the Town Superintendent of Highways prior to plaintiff’s accident. Through these affidavits, the Town satisfied its burden to demonstrate lack of prior written notice (see Hockett, 149 AD3d at 1379).2 Where the municipality establishes that it lacked prior written notice, “the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule — that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality” (Yarborough v. City of New York, 10 NY3d 726, 728 [2008]; see also Oboler v. City of New York, 8 NY3d 888, 889-90 [2007]; Amabile v. City of Buffalo, 93 NY2d 471, 474 [1999]; Hockett, 149 AD3d at 1379). The affirmative negligence exception is limited to work by the municipality that immediately results in the existence of a dangerous condition (Yarborough, 10 NY3d at 728; Oboler, 8 NY3d at 889; see also Hockett, 149 AD3d at 1379). In opposition to the Town’s motion, plaintiffs offered the affidavits of plaintiff and the two friends with whom he has been fishing just prior to the accident. In their affidavits, plaintiff and his friend Roger Wydler describes the edge of the culvert as “blade sharp” and “jagged and extremely sharp…razor sharp,” respectively. With respect to their claim that the Town affirmatively created the alleged hazardous condition, plaintiffs offer an affidavit of T. Rao Tipirneni, a metallurgical engineer, who avers he was told that the culvert was composed of galvanized steel and opines, inter alia, that based upon his examination of (undated) photographs of the culvert, “…the culvert appears to be of galvanized steel, showing an end that was probably cut after galvanization” (emphasis added). Of note, Mr. Tipirneni, whom plaintiffs apparently rely upon as an expert, did not personally inspect the culvert or conduct any testing of the same. Mr. Tipirneni’s opinion is countered by the reply affidavit of Mr. Clark, in which Mr. Clark avers that: the culvert pipe was installed approximately 30 years ago; the culvert pipe was specifically ordered for the length required and was delivered by the manufacturer precut, with rounded edges; the Town did not cut the end of the culvert pipe; and the end of the culvert pipe had rounded edges when it was installed. Mr. Tipirneni’s conclusion is speculative and is insufficient to raise a material issue of fact with respect to any alleged affirmative negligence on part of the Town (see Groninger v. Vil. of Mamaroneck, 17 NY3d 125, 130 [2011] [opinion of plaintiff's expert engineer was speculative, as it was premised on inspection conducted, and photographs taken, of parking lot over two years after plaintiff's fall]; Ann JJ. v. Schenectady Ass’n for Retarded Citizens, 59 AD3d 772, 773 [3d Dept 2009] [expert's affidavit offered as proof to defeat summary judgment motion must contain sufficient allegations to demonstrate conclusions it contains are more than mere speculation and would, if offered alone at trial, support verdict in proponent's favor]), particularly in the face of Mr. Clark’s affidavits. The Town demonstrated that it is immune from liability in this action pursuant to General Obligations Law §9-103, as it is undisputed that at the time of the accident, plaintiff was engaged in recreational activities enumerated in the statute. Assuming, arguendo, the Town is not afforded immunity under General Obligations Law §9-103, the Town has adequately established it did not receive the requisite notice under Town Law §65-a, and plaintiffs have failed to establish that any exception to the rule applies. The Town met its initial burden of establishing prima facie entitlement to judgment as a matter of law, shifting the burden to plaintiffs to demonstrate a triable issue of fact (see Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49 [2015]; Alvarez v. Prospect Hosp., 68 NY2d 320, 323 [1986]). Even viewing the evidence in a light most favorable to plaintiffs, as the nonmovants, the Court finds that plaintiffs failed to meet that burden. Defendant is, therefore, entitled to summary judgment. Based upon the foregoing, it is ORDERED that defendant’s motion is granted; and it is further ORDERED that plaintiffs’ complaint is dismissed. The within constitutes the Decision and Order of this Court. Signed this 8th day of September, 2020, at Lake George, New York. Dated: September 8, 2020
