Alberta Horton Et Al. v. City Schenectady

Plaintiffs commenced this action seeking to recover damages for injuries allegedly sustained in October 1975 when plaintiff Alberta Horton fell on an allegedly defective sidewalk located in the City of Schenectady, Schenectady County. Following joinder of issue, this lawsuit apparently sputtered to a standstill for reasons not entirely clear from the record. Nevertheless, in May 1990, defendant moved for summary judgment dismissing the complaint solely on the ground that it did not receive prior written notice of the hazardous condition as required by Schenectady City Charter ? 1.7. Alternatively, defendant also moved to disqualify plaintiffs' attorneys on conflict of interest grounds. Noting that plaintiffs did not dispute the lack of prior written notice, Supreme Court granted defendant's motion for summary judgment in its entirety without reaching the disqualification issue. Plaintiffs now appeal, arguing that summary judgment was improperly granted. Initially, we note that the allegations in the complaint, liberally construed, primarily allege that defendant affirmatively created the dangerous condition in the sidewalk through the performance of negligent repairs. In its motion for summary judgment, however, defendant only raised the issue of lack of notice under its City Charter and did not address the allegations of affirmative negligence. It is well settled that if a ""complaint alleges that the municipality created or caused the hazardous condition, prior written notice is not required to maintain the action"" (Hogan v Grand Union Co., 126 A.D.2d 875, 876; see, Wert v City of Ogdensburg, 145 A.D.2d 767, 768; Rehfuss v City of Albany, 118 A.D.2d 987). Since defendant's summary judgment motion papers did not address plaintiffs' allegations of affirmative negligence, defendant did not meet its initial burden on a summary judgment motion with respect to those claims (see, CPLR 3212 [b]; Rogers v County of Saratoga, 144 A.D.2d 731, 732) and Supreme Court erred in granting defendant's motion in its entirety.