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Bielecki v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Jan 4, 2005
14 A.D.3d 301 (N.Y. App. Div. 2005)

Summary

In Bielecki, we affirmed the trial court in granting the City's motion to set aside the verdict and dismiss the complaint where the plaintiff failed to show that the City had prior written notice (Administrative Code of City of NY § 7-201 [c] [2]) of the hole in a pedestrian walkway that he stepped into, causing his injuries.

Summary of this case from Ocasio v. City of New York

Opinion

3982

January 4, 2005.

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered March 25, 2003, which, pursuant to the court's grant of defendant's posttrial motion to set aside the jury's verdict, dismissed the complaint, unanimously affirmed, without costs.

Before: Buckley, P.J., Tom, Saxe, Sullivan and Friedman, JJ.


Plaintiff fell and injured himself when he stepped into an ankle-deep hole in a pedestrian pathway in Central Park. There is no evidence that defendant (the City) received prior written notice of the defect in the pathway, as required under the Pothole Law (Administrative Code of City of NY § 7-201 [c] [2]) to render the City liable for injuries caused by such defect. Accordingly, the trial court correctly granted the City's motion to set aside the jury's verdict in favor of plaintiff. Contrary to plaintiff's argument, the subject defect was not the creation of an affirmative act of negligence by the City within the meaning of Amabile v. City of Buffalo ( 93 NY2d 471, 474) so as to render the Pothole Law's notice requirement inapplicable. We understand the affirmative negligence exception to the notice requirement to be limited to work by the City that immediately results in the existence of a dangerous condition. Here, plaintiff's expert did not opine that the subject defect existed immediately upon the completion of the City's repair work. Rather, he opined that the defect developed over time as the result of water seeping into, and freezing within, the City's allegedly negligent patchwork repair of the pathway ( cf. Kiernan v. Thompson, 73 NY2d 840, 841-842 [notice was not required where a city's removal of a tree stump "creat[ed] the broken and defective condition of the sidewalk that resulted in plaintiff's injuries"]). If we were to extend the affirmative negligence exception to cases like this one, where it is alleged that a dangerous condition developed over time from an allegedly negligent municipal repair, the exception to the notice requirement would swallow up the requirement itself, thereby defeating the purpose of the Pothole Law. For this reason, we now overrule Torres v. City of New York ( 306 AD2d 191).


Summaries of

Bielecki v. City of New York

Appellate Division of the Supreme Court of New York, First Department
Jan 4, 2005
14 A.D.3d 301 (N.Y. App. Div. 2005)

In Bielecki, we affirmed the trial court in granting the City's motion to set aside the verdict and dismiss the complaint where the plaintiff failed to show that the City had prior written notice (Administrative Code of City of NY § 7-201 [c] [2]) of the hole in a pedestrian walkway that he stepped into, causing his injuries.

Summary of this case from Ocasio v. City of New York

In Bielecki v City of New York (14 AD3d 301), the Appellate Division, First Department held that the "affirmative creation" exception did not apply in a case where the plaintiff's expert "did not opine that the subject defect existed immediately upon the completion of the City's repair work.

Summary of this case from Field v. City of New York

In Bielecki, the Court refused to extend the affirmative negligence exception to dangerous conditions which developed over time from an allegedly negligent municipal repair (see id.; see also Brooks v. Village of Horseheads, 14 AD3d 756 [3rd Dept 2005]).

Summary of this case from Fuhrmann v. City of Binghamton
Case details for

Bielecki v. City of New York

Case Details

Full title:TOMASZ BIELECKI, Appellant, v. CITY OF NEW YORK, Respondent

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jan 4, 2005

Citations

14 A.D.3d 301 (N.Y. App. Div. 2005)
788 N.Y.S.2d 67

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