Speach v Consolidated Edison Co. of N.Y., Inc.

2008 NY Slip Op 05758

Decided on June 24, 2008

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 24, 2008
Tom, J.P., Saxe, Gonzalez, Nardelli, JJ.
3442 401087/03






The Breakstone Law Firm, P.C., Bellmore (Jay L.T. Breakstone
of counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York
(Mordecai Newman of counsel), for respondent.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered January 29, 2007, which granted defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Dismissal of the complaint as against the City was proper in this action where plaintiff was injured when she allegedly tripped and fell in a five-inch deep sinkhole located on a City street. The record establishes that the City lacked prior written notice of the defective condition as required under Administrative Code of the City of New York § 7-201(c)(2) (Pothole Law), and plaintiff failed to raise a triable issue of fact as to whether the City created the defective condition within the meaning of the exception to the prior written notice requirement, "which requires that the affirmative negligence of the City immediately result in the existence of a dangerous condition" (Yarborough v City of New York, 10 NY3d 726, 728 [2008]; see Bielecki v City of New York, 14 AD3d 301 [2005]). Even assuming that the City failed to address the underlying cause of the sinkhole in its prior repair efforts, the condition that caused plaintiff's fall developed over time (see Bielecki, 14 AD3d at 302).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 24, 2008

CLERK