Lado v. City of Rome

—Order unanimously reversed on the law without costs, motion granted and complaint against defendant City of Rome dismissed. Memorandum: Supreme Court erred in denying the motion of the City of Rome (defendant) to dismiss the complaint against it. Michael Lado (plaintiff) was injured while proceeding across North Street in the City of Rome when he tripped over a water valve vault, the cover of which was missing. It is undisputed that defendant did not have prior written notice of the unsafe, dangerous or defective condition as required by City of Rome Charter Laws, title A, § 176. There are two exceptions to the notice requirement, “namely, where the locality created the defect or hazard through an affirmative act of negligence (see, Kiernan v Thompson, 73 NY2d 840, 842) and where a ‘special use’ confers a special benefit upon the locality (see, Poirier v City of Schenectady, [85 NY2d 310, 314-315]; D' Ambrosio v City of New York, 55 NY2d 454)” (Amabile v City of Buffalo, 93 NY2d 471, 474). Plaintiffs do not allege that defendant affirmatively created the defect, and the special use exception does not apply because the water valve vault cover was maintained by defendant as part of its duty to maintain safe streets (see, ITT Hartford Ins. Co. v Village of Ossining, 257 AD2d 606, 606-607; see also, Poirier v City of Schenectady, supra, at 314-315; Barnes v City of Mt. Vernon, 245 AD2d 407). (Appeal from Order of Supreme Court, Oneida County, Shaheen, J. — Dismiss Pleading.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.