RABICH v. Olson's Creative Landscaping Corp., et al., Defendants. (2024)

Order, Supreme Court, New York County (Leslie A. Stroth, J.), entered October 14, 2022, which denied defendant City of New York's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

Joseph Rabich (decedent) brought this negligence action alleging injuries as a result of a trip and fall due to a broken roadway in the crosswalk at the southbound intersection of Broadway and West 109th Street, in New York County, on or about January 13, 2016.

The City's motion for summary judgment should have been granted.  The City met its prima facie burden and established that it did not receive prior written notice of a pothole that caused plaintiff's decedent's accident (see Administrative Code of City of N.Y. § 7–201[c][2];  Yarborough v. City of New York, 10 NY3d 726, 728 [2008]).

In opposition, plaintiff failed to raise a question of fact that the City affirmatively created the defect through an act of negligence, “that immediately results in the existence of a dangerous condition” (Yarborough, 10 NY3d at 728 [internal quotation marks omitted]).