City of New York

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, First DepartmentNov 1, 2011
5895. (N.Y. App. Div. 2011)
5895.931 N.Y.S.2d 3262011 N.Y. Slip Op. 7711


Decided on November 1, 2011.

Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 20, 2010, which, in this action for personal injuries allegedly sustained when plaintiff tripped in a pothole while walking within a crosswalk and fell to the ground, granted defendant City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The Law Office of Jeffrey S. Schwartz, LLC, Mineola (Jeffrey S. Schwartz of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for respondent.

Friedman, J.P., Catterson, Moskowitz, Freedman, Abdus-Salaam, JJ.

The record demonstrates that the City did not receive prior written notice of the defect pursuant to Administrative Code of the City of New York § 7-201(c)(2). Accordingly, the burden shifted to plaintiff to establish one of the exceptions to the prior written notice requirement. The only possible exception applicable in this case is that the City's affirmative act of negligence immediately resulted in the existence of a dangerous condition (see Yarborough v City of New York , 10 NY3d 726 ; Oboler v City of New York , 8 NY3d 888 ). Contrary to plaintiff's contention, "constructive notice of a defect may not override the statutory requirement of prior written notice of a [roadway] defect" ( Amabile v City of Buffalo, 93 NY2d 471, 475-476).

Here, a Department of Transportation search of its records revealed that pothole repair and resurfacing work had been performed and completed by the City at the subject location in June 2002, approximately two years before plaintiff's accident. Plaintiff offered no evidentiary support for her claim that the work performed in 2002 immediately resulted in the defective condition complained of in 2004 ( see Ocasio v City of New York, 28 AD3d 311; Bielecki v City of New York , 14 AD3d 301 ). The mere eventual emergence of dangerous conditions as a result of wear and tear, and environmental factors, does not constitute an act of affirmative negligence ( see Hyland v City of New York , 32 AD3d 822 ). Furthermore, "[t]he . . . failure to maintain or repair a roadway constitutes an act of omission rather than an affirmative act of negligence" ( Farrell v City of New York , 49 AD3d 806 , 808).

We have considered plaintiff's remaining arguments, including her claim that further discovery was necessary, and find them unavailing.