Wade Clark Mulcahy LLP

In Doris Goodman v. City of New York, 2024 NY Slip Op. 04377, the Second Department addressed an appeal by the plaintiff in a trip and fall case, seeking reversal of the trial court’s denial of summary judgment. The plaintiff allegedly tripped and fell as a result of a depression abutting a manhole cover situated in a roadway in Brooklyn. She brought a negligence suit against the City of New York, alleging that the City created a defective condition when it performed asphalt repair work on the roadway. The plaintiff moved for summary judgment on the issue of liability, and the defendant cross-moved for summary judgment, seeking dismissal of the complaint.

Generally, it is the duty of the city to maintain municipal streets and sidewalks free of defects or hazardous conditions. However, Section 7-210 of the NYC Administrative Code limits that duty by imposing liability only for defects or hazardous conditions for which its officials have been actually notified at a specified location (Smith v. City of New York, 210 AD3d 53, 61). "To be entitled to summary judgment, the municipality must first establish that it lacked prior written notice of the alleged defect. Once that showing is made, 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" (Canaday v. Village of Wappingers Falls, 220 AD3d 731, 732).

Notably, the affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition (Wilson v. Incorporated Vil. of Freeport, 212 AD3d 870, 871). Therefore, if a defect develops over time due to a negligent repair, the affirmative negligence exception does not apply.

Ultimately, the Second Department affirmed the lower court’s decision to deny summary judgment to the plaintiff. The court found that the plaintiff failed to present evidence that the defendant’s work immediately resulted in the creation of the alleged defect. The court further reasoned that the plaintiff’s argument that the defendant affirmatively created the defect by failing to remedy it was without merit, stating that "[t]he mere failure to maintain or repair a roadway constitutes an act of omission rather than an affirmative act of negligence." Therefore, the plaintiff did not establish her entitlement to summary judgment as she failed to demonstrate that the City affirmatively created the defect through an act of negligence.

This case is significant when defending cases where we are co-defendants with the City. At WCM, we often face similar scenarios where the City appears to have created a defective condition, and we attempt to push liability onto the municipality. However, if prior notice is absent, proving that the City immediately created the defect is crucial for a successful summary judgment motion.