The Court of Appeals has recognized a possible exception to the prior written notice statute required for bring a personal injury action against the government. In San Marco v. Village/Town of Mount Kisco , the Court found that there was an issue as to whether village created black ice condition upon which plaintiff slipped and fell precluded summary judgment.
The Court of Appeals has held that the "immediacy" test for determining whether the "affirmative creation" exception to the prior written notice statute excused written notification in cases involving hazards caused by a pothole or manhole cover did not extend to cases involving hazards related to negligent snow removal. As such, a village could be liable for a negligent ice condition without receiving prior written notice, if it created the defect or hazard through an affirmative act of negligence. However, a fact issue as to whether the village created the black ice condition upon which the plaintiff slipped and fell precluded summary judgment in the plaintiff's personal injury action against the village.
