What Constitutes An Act of Negligence on the Part of the Municipality ?
In Kiernan v. Thompson (73 NY2d 840) the city had created the crack in the sidewalk causing the plaintiff to fall.
Similarly in O'Toole v. County of Sullivan (255 AD2d 799), the municipality was found to have improperly patched the sidewalk, curb and roadway where the plaintiff fell, leaving a dangerous condition of uneven, rough paving.
These were instances of active negligence sufficient to avoid the prior notice provision.
But, they are substantially different from what has been held to be the passive negligence of failing to attend to ice on the road or to give warning of its danger.
There is also a line of cases which holds that even where a municipality has cleared a portion of a roadway of snow or ice, there is no obligation on it to have cleared all the snow and ice from a particular area. (See, Woll v. Village of Rockville Centre, 205 AD2d 683; Albanese v. Town of Hempstead, 176 AD2d 697.)
Failure to sand certain portions of the road while sanding others is not an affirmative act of negligence.