Opinion
05-23-2017
Diana WORTHMAN, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent.
Marder, Eskesen & Nass, New York (Clifford D. Gabel of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
Marder, Eskesen & Nass, New York (Clifford D. Gabel of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.
ACOSTA, P.J., RENWICK, MAZZARELLI, ANDRIAS, MANZANET–DANIELS, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered August 4, 2015, which granted defendant City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The City made a prima facie showing that it did not have prior written notice of the defective roadway condition that allegedly caused plaintiff to trip and fall (see Administrative Code of City of N.Y. § 7–201 [c][2] ; Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ). Although some of the documents submitted by the City in support of its motion showed the existence of potholes and defects at the accident site during the two years leading up to the accident, there was no proof that any of these defects—all of which were repaired—the cause of the accident. In any event, "[t]he awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident" (Roldan v. City of New York, 36 A.D.3d 484, 484, 831 N.Y.S.2d 110 [1st Dept.2007] ). Moreover, "the City's records of citizen reports of ... potholes in the area and FITS reports of repairs made to potholes ... did not provide the City with prior written notice of the particular defect in the crosswalk where plaintiff fell" (Stoller v. City of New York, 126 A.D.3d 452, 452, 2 N.Y.S.3d 357 [1st Dept.2015] ; see Haulsey v. City of New York, 123 A.D.3d 606, 999 N.Y.S.2d 400 [1st Dept.2014] ).
In opposition, plaintiff failed to raise an issue of fact. There was no proof that the defect reported in a prior notice of claim was the same defect that ultimately caused plaintiff's injury. Furthermore, plaintiff's claim that the City's negligent repair of the accident site created the defect did not raise an issue of fact because there was no evidence that the allegedly negligent repair immediately caused the defect, and plaintiff's claim to the contrary was entirely speculative (see Ragolia v. City of New York, 143 A.D.3d 596, 597, 40 N.Y.S.3d 63 [1st Dept.2016] ; Ghin v. City of New York, 76 A.D.3d 409, 410, 904 N.Y.S.2d 905 [1st Dept.2010] ).