| Wald v City of New York |
| 2014 NY Slip Op 02035 [115 AD3d 939] |
| March 26, 2014 |
| Appellate Division, Second Department |
| Rella Wald et al., Appellants, v City of New York,Respondent. |
—[*1] Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart andDrake A. Colley of counsel; Johanna Zacarias on the brief), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Queens County(Kerrigan, J.), dated August 14, 2012, as granted the defendant's motion for summaryjudgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
On June 25, 2009, the injured plaintiff tripped when she stepped into a hole in aroadway in Queens while attempting to cross the street. The injured plaintiff and herhusband served a notice of claim upon the defendant, City of New York. Thereafter, theinjured plaintiff, and her husband suing derivatively, commenced this action against theCity to recover damages for her personal injuries, alleging that the City was negligent in,inter alia, creating the subject defect. They alleged in their verified bill of particulars thatthe subject condition was "an extended section of defective and dangerous roadwaywhich was broken, depressed, uneven and constituted a trap and hazard."
The City moved for summary judgment dismissing the complaint, and the plaintiffscross-moved to amend their notice of claim and complaint to allege compliance with theprior written notice requirement of section 7-201 (c) of the Administrative Code of theCity of New York. As relevant to this appeal, the Supreme Court granted the City'smotion for summary judgment dismissing the complaint.
"Where, as here, a municipality has enacted a prior written notice law, it may not besubjected to liability for injuries caused by a dangerous roadway condition unless it hasreceived prior written notice of the dangerous condition, or an exception to the priorwritten notice requirement applies" (Phillips v City of New York, 107 AD3d 774, 774 [2013];see Martinez v City of NewYork, 105 AD3d 1013, 1014 [2013]; Conner v City of New York, 104 AD3d 637, 638 [2013])."The only recognized exceptions to the statutory prior written notice requirement involvesituations in which the municipality created the defect or hazard through an affirmativeact of negligence, or where a special use confers a benefit upon the municipality"(Conner v City of New York, 104 AD3d at 638; [*2]see Oboler v City of New York, 8 NY3d 888,889-890 [2007]; Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Ryan v City of New York, 84AD3d 926, 927 [2011]; Alvino v City of New York, 49 AD3d 676, 677 [2008])."Additionally, the affirmative negligence exception 'is limited to work by the City thatimmediately results in the existence of a dangerous condition' " (Yarborough v City of NewYork, 10 NY3d 726, 728 [2008], quoting Oboler v City of New York, 8NY3d at 889; see Laracuente vCity of New York, 104 AD3d 822, 822 [2013]).
The prima facie showing that a defendant must make on a motion for summaryjudgment is governed by the allegations of liability made by the plaintiffs in thepleadings (see Carlucci vVillage of Scarsdale, 104 AD3d 797, 798 [2013]; Foster v Herbert Slepoy Corp.,76 AD3d 210, 214 [2010]). Since the plaintiffs alleged in their complaint that theCity created the alleged defect, the City was obligated to establish, as part of its primafacie showing, both that it did not receive prior written notice of the alleged defect, andthat it did not create the alleged defect through an affirmative act of negligence (see Romano v Village ofMamaroneck, 100 AD3d 854, 855 [2012]).
The City established its prima facie entitlement to judgment as a matter of law bypresenting evidence that it had not received prior written notice of the condition thatallegedly caused the injured plaintiff's injuries (see Minew v City of New York, 106 AD3d 1060, 1061[2013]; Daniels v City of NewYork, 91 AD3d 699, 700 [2012]), and that it did not create that conditionthrough an affirmative act of negligence (see Romano v Village of Mamaroneck,100 AD3d at 855).
Contrary to the plaintiffs' contentions, they failed to raise a triable issue of fact as towhether the City actually was provided with timely prior written notice or whether theaffirmative act exception applied. Evidence that the City, in response to an oralcomplaint received on April 3, 2009, repaired potholes in the subject street on April 17,2009, more than 10 weeks prior to the happening of the accident, did not raise a triableissue of fact as to whether the City affirmatively created the condition, as there was noevidence that a dangerous condition existed immediately after the repair was completedor that the repair caused subsequent immediate deterioration (see Spanos v Town ofClarkstown, 81 AD3d 711, 713 [2011]; Hirasawa v City of Long Beach, 57 AD3d 846, 848[2008]; Lopez v G&J RudolphInc., 20 AD3d 511, 512 [2005]). In addition, the opinion of the plaintiffs' expertthat the City affirmatively created the subject defective condition was based onspeculation and was unsupported by the record (see Oboler v City of New York,8 NY3d at 890).
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the City's motion for summaryjudgment dismissing the complaint. Mastro, J.P., Lott, Austin and Hinds-Radix, JJ.,concur.