| Rosenblum v City of New York |
| 2011 NY Slip Op 07711 [89 AD3d 439] |
| November 1, 2011 |
| Appellate Division, First Department |
| Gladys Rosenblum, Appellant, v City of New York,Respondent, et al., Defendants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), forrespondent.
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 potholewhile walking within a crosswalk and fell to the ground, granted defendant City of New York'smotion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The record demonstrates that the City did not receive prior written notice of the defectpursuant to Administrative Code of the City of New York § 7-201 (c) (2). Accordingly, theburden shifted to plaintiff to establish one of the exceptions to the prior written noticerequirement. The only possible exception applicable in this case is that the City's affirmative actof negligence immediately resulted in the existence of a dangerous condition (see Yarborough v City of New York,10 NY3d 726 [2008]; Oboler v Cityof New York, 8 NY3d 888 [2007]). Contrary to plaintiff's contention, "constructivenotice 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 [1999]).
Here, a Department of Transportation search of its records revealed that pothole repair andresurfacing work had been performed and completed by the City at the subject location in June2002, approximately two years before plaintiff's accident. Plaintiff offered no evidentiary supportfor her claim that the work performed in 2002 immediately resulted in the defective conditioncomplained of in 2004 (see Ocasio vCity of New York, 28 AD3d 311 [2006]; Bielecki v City of New York, 14 AD3d 301 [2005]). The mereeventual emergence of dangerous conditions as a result of wear and tear, and environmentalfactors, does not constitute an act of affirmative negligence (see Hyland v City of New York, 32 AD3d 822 [2006]).Furthermore, "[t]he . . . failure to maintain or repair a roadway constitutes an act ofomission rather than an affirmative act of negligence" (Farrell v City of New York, 49 AD3d 806, 808 [2008]).
We have considered plaintiff's remaining arguments, including her claim that further [*2]discovery was necessary, and find them unavailing.Concur—Friedman, J.P., Catterson, Moskowitz, Freedman and Abdus-Salaam, JJ.[Prior Case History: 2010 NY Slip Op 32217(U).]