In Wilkie v. Town of Huntington, 29 AD3d 898, 816 NYS2d 148 [2nd Dept 2006], the Court stated where a municipality has enacted a prior written notice statute, it cannot be liable for injuries caused by an improperly maintained roadway unless it has received prior written notice of the defect or an exception to the prior written notice applies; actual or constructive notice of a defect does not satisfy this requirement.

The Court further set forth that an exception to the prior written notice requirement exists when a municipality creates the subject defect through an affirmative act of negligence.