| Minew v City of New York |
| 2013 NY Slip Op 03822 [106 AD3d 1060] |
| May 29, 2013 |
| Appellate Division, Second Department |
| Andrew Minew, Respondent, v City of New York,Appellant. |
—[*1] Decolator, Cohen & DiPrisco, LLP, Garden City, N.Y. (Joseph L. Decolator ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Kings County (Velasquez, J.), dated May 10, 2012, whichdenied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motionfor summary judgment dismissing the complaint is granted.
The plaintiff, a New York City police officer, was injured on the job on January 4,2009, when he tripped and fell on a raised portion of the roadway surface located on thewest side of Coney Island Avenue, between Avenue H and the Long Island Rail RoadBay Ridge Line in Brooklyn. There was evidence that the condition had been present inthe roadway since 2004, and that the New York City Department of Transportationhighway inspectors were present near the site on at least three occasions from February2007 to July 2007 in connection with certain permits which had been issued to"Keyspan" and Consolidated Edison Company. The defendant, the City of New York,moved for summary judgment dismissing the complaint on the ground that it did nothave prior written notice of the road defect over which the plaintiff tripped and fell. Theplaintiff opposed on the ground, inter alia, that the City had constructive notice of thedefect. The Supreme Court agreed with the plaintiff and denied the City's motion.
"Pursuant to Administrative Code of the City of New York § 7-201 (c) (2), aplaintiff must plead and prove that the City had prior written notice of a roadway defect,or dangerous or obstructed condition before it can be held liable for its allegednegligence related thereto" (Hubbard v City of New York, 84 AD3d 1313 [2011]; see Burwell v City of NewYork, 97 AD3d 617 [2012]; Daniels v City of New York, 91 AD3d 699 [2012]; Farrell v City of New York, 49AD3d 806, 807 [2008]). "The only two recognized exceptions to the prior writtennotice requirement are where the municipality created the defect through an affirmativeact of negligence, or where the defect resulted from a special use of the property by themunicipality which conferred a special benefit on it" (Levy v City of New York, 94 AD3d 1060, 1060 [2012]; see Oboler v City of NewYork, 8 NY3d 888, 889-890 [2007]; Amabile v City of Buffalo, 93NY2d 471, 474 [1999]).[*2]
Here, the plaintiff did not allege one of therecognized exceptions. Thus, the City established its prima facie entitlement to judgmentas a matter of law by providing evidence that it did not have prior written notice of thealleged defective condition, shifting the burden to the plaintiff to demonstrate theexistence of one of the two recognized exceptions to the prior written notice statute (see Yarborough v City of NewYork, 10 NY3d 726, 728 [2008]; Levy v City of New York, 94 AD3d at1060; cf. Carlucci v Village ofScarsdale, 104 AD3d 797 [2013]). The plaintiff failed to do so. Contrary to theplaintiff's contentions and the Supreme Court's determination, neither actual norconstructive notice obviates the need for prior written notice under the AdministrativeCode (see Farrell v City of New York, 49 AD3d at 807; Lopez v Gonzalez, 44 AD3d1012, 1013 [2007]; MinWhan Ock v City of New York, 34 AD3d 542 [2006]; Reich v Meltzer, 21 AD3d543, 544 [2005]; see also Amabile v City of Buffalo, 93 NY2d at 475-476).Angiolillo, J.P., Hall, Roman and Hinds-Radix, JJ., concur.