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The 'Creation Exception' to the Pothole Law: Difficult to Prove

, New York Law Journal

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Kevin G. Faley and Kenneth E. Pitcoff write that the Court of Appeals has recognized only two exceptions to the statutory requirement of prior written notice of roadway and sidewalk defects, the first of which is where the locality created the defect through an affirmative act of negligence, which is limited to work that immediately results in a dangerous condition. Two recent cases clarified what is necessary to defeat a claim of immediate creation of a dangerous condition.

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