| Farrell v City of New York |
| 2008 NY Slip Op 02787 [49 AD3d 806] |
| March 25, 2008 |
| Appellate Division, Second Department |
| Janine Farrell, Appellant, v City of New York, Respondent,and Grace Industries, Inc., et al., Appellants. |
—[*1] Torino & Bernstein, Mineola, N.Y. (Vincent J. Battista of counsel), fordefendants-appellants. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F. X. Hart, AndrewPotak, and Marta Ross of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by herbrief, from so much of an order of the Supreme Court, Kings County (Battaglia, J.), datedFebruary 15, 2007, as granted that branch of the cross motion of the defendant City of New Yorkwhich was for summary judgment dismissing the complaint insofar as asserted against it, and thedefendants Grace Industries, Inc., El Sol Contracting & Construction, Inc., and Grace Industries,Inc./El Sol Contracting & Construction, Inc., J.V., separately appeal, as limited by their brief,from so much of the same order as granted the cross motion of the defendant City of New Yorkfor summary judgment dismissing the complaint and all cross claims insofar as asserted againstit.
Ordered that the appeal by the defendants Grace Industries, Inc., El Sol Contracting &Construction, Inc, and Grace Industries, Inc./El Sol Contracting & Construction, Inc., J.V., fromso much of the order as granted that branch of the cross motion of the defendant City [*2]of New York which was for summary judgment dismissing thecomplaint insofar as asserted against it is dismissed, as those defendants are not aggrieved by thatportion of the order; and it is further,
Ordered that the order is affirmed insofar as reviewed, with one bill of costs payable to therespondent by the appellants appearing separately and filing separate briefs.
At approximately 6:20 a.m. on May 15, 2002 the plaintiff, a New York City police detective,was driving to work on the Manhattan-bound Gowanus Expressway, approaching the toll boothsat the Brooklyn Battery Tunnel, when her vehicle was struck by a metal object, later identified asa brake shoe that had apparently fallen off of a truck. The object pierced the windshield of theplaintiff's vehicle, striking her in the head. The plaintiff was rendered unconscious and lostcontrol of her vehicle which crashed into a concrete median and toll booth barrier. The plaintiffsustained significant injuries as a result of the accident.
In the order appealed from, the Supreme Court, inter alia, granted the City's motion forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it,finding that the City was not given prior written notice of the alleged dangerous condition asrequired by Administrative Code of the City of New York § 7-201 (c) (2). We affirm theorder insofar as reviewed.
Pursuant to Administrative Code of the City of New York § 7-201 (c) (2), a plaintiffmust plead and prove that the City had prior written notice of a roadway defect, or dangerous orobstructed condition before it can be held liable for its alleged negligence related thereto (seeEstrada v City of New York, 273 AD2d 194 [2000]). Transitory conditions present on aroadway or walkway such as debris, oil, ice, or sand have been found to constitute potentiallydangerous conditions for which prior written notice must be given before liability may beimposed upon a municipality (see MinWhan Ock v City of New York, 34 AD3d 542 [2006]; Estrada v City of NewYork, 273 AD2d at 194; White v Town of Islip, 249 AD2d 464, 465 [1998];Almodovar v City of New York, 240 AD2d 523 [1997]; Rogers v Town ofRamapo, 211 AD2d 775 [1995]; Baez v City of New York, 236 AD2d 305 [1997]).The only two exceptions to compliance with prior written notice statutes are where themunicipality affirmatively created the alleged defect or dangerous condition, or where a specialuse conferred a special benefit upon the municipality (see Amabile v City of Buffalo, 93NY2d 471, 474 [1999]; Ferreira vCounty of Orange, 34 AD3d 724, 724-725 [2006]). Neither actual nor constructivenotice may substitute or override a prior written notice requirement (see Silva v City of New York, 17AD3d 566, 567 [2005]).
Here, it was undisputed that the City had no prior written notice of the alleged dangerouscondition. Accordingly, the City established its prima facie entitlement to judgment as a matter oflaw (see Koehler v Incorporated Vil. ofLindenhurst, 42 AD3d 438 [2007]; Ferreira v County of Orange, 34 AD3d at725). In opposition, neither the plaintiff nor the other defendants (hereinafter collectively theappellants) raised a triable issue of fact as to whether the allegedly dangerous or obstructedcondition was created by any affirmative acts of negligence by the City (see Smith v Town of Brookhaven, 45AD3d 567 [2007]; Ferreira v County of Orange, 34 AD3d at 725). The mere failureto maintain or repair a roadway constitutes an act of omission rather than an affirmative act ofnegligence (see Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917, 919[1989]; Silva v City of New York,17 AD3d 566, 568 [2005]; Alfano v City of New Rochelle, 259 AD2d 645 [1999]).
The appellants' remaining contentions either are improperly raised for the first time [*3]on appeal or are without merit. Prudenti, P.J., Miller, Dillon andMcCarthy, JJ., concur.