SANTANA v. CITY OF NEW YORK (2008)

Judgment, Supreme Court, Bronx County (Stanley Green, J.), entered on or about January 16, 2007, upon a jury verdict finding defendant 100% liable for plaintiff's injuries, unanimously affirmed, without costs.

Plaintiff was injured when his bicycle struck a 3 1/212-inch high metal bollard sleeve protruding from a municipal park pathway without the 40-inch high bollard pole positioned in the sleeve.   Contrary to defendant's contention, its motion to dismiss at trial was properly denied, because although defendant did not have prior written notice of the defective condition (see Administrative Code of the City of New York § 7-201[c][2] ), the evidence established that the recognized exception to the prior written notice requirement applied, namely that defendant acted negligently when it affirmatively created the dangerous condition (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008];  Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999] ).   Defendant had a duty to maintain the bollard pole and sleeve in a reasonably safe condition (see Posner v. New York City Tr. Auth., 27 A.D.3d 542, 813 N.Y.S.2d 106 [2006] ), and the evidence showed that the missing bollard pole was regularly removed by defendant's employees to allow for maintenance vehicles to access areas of the park normally blocked by the bollards.