PENA v. CITY OF NEW YORK (2025)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about August 12, 2024, which granted the motion of defendant The City of New York for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff alleges that he was injured when he fell from the moped he was riding after it struck a pothole in the roadway.  The City met its prima facie burden by submitting evidence showing that it lacked prior written notice of the alleged defect (Administrative Code of City of N.Y. § 7–201[c][2];  see Jones v. City of New York, 237 A.D.3d 639, 639–640, 231 N.Y.S.3d 474 [1st Dept. 2025]).  According to an affidavit of a Department of Transportation employee, the DOT conducted a search of its records for the relevant location and found that the records did not contain any written notice of the particular defect that allegedly caused plaintiff to fall (see Civic v. City of New York, 215 A.D.3d 445, 445, 188 N.Y.S.3d 12 [1st Dept. 2023]).

In opposition, plaintiff failed to raise a triable issue of fact as to whether the City had prior written notice of the pothole (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]).  Although the record shows that there had been a pothole in the same roadway where plaintiff was injured, it was in the opposite lane and it had been repaired nearly a year before plaintiff's accident.  Therefore, notice of the second pothole is insufficient to constitute notice of the defect that allegedly caused plaintiff to fall (see Kalsmith v. City of New York, 158 A.D.3d 442, 442, 67 N.Y.S.3d 830 [1st Dept. 2018]).  Evidence of resurfacing work on the same roadway in 2013 also did not did not provide notice because the relevant document did not detail the scope and nature of the work nor did it mention potholes (see Vargas v. City of New York, 172 A.D.3d 552, 553, 98 N.Y.S.3d 749 [1st Dept. 2019];  Trentman v. City of New York, 162 A.D.3d 559, 559, 80 N.Y.S.3d 225 [1st Dept. 2018]).

Furthermore, plaintiff did not show the existence of an exception to the prior written notice requirement, as he failed to submit evidence showing that the City created the defect through an affirmative act of negligence (see Yarborough, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;  Smith v. City of New York, 228 A.D.3d 472, 473, 213 N.Y.S.3d 302 [1st Dept. 2024]).  Contrary to plaintiff's assertion otherwise, neither the record of the 2013 resurfacing work nor the record of a 2015 sewer installation provides a nonspeculative basis to conclude that those works immediately resulted in the defect (see Civic, 215 A.D.3d at 446, 188 N.Y.S.3d 12).

Supreme Court properly found that plaintiff's expert affidavit was not probative of the accident site's condition on the date of the accident.  On the contrary, the expert inspected the site six weeks later, after the pothole had been repaired (see Amini v. Arena Constr. Co., Inc., 110 A.D.3d 414, 415, 972 N.Y.S.2d 236 [1st Dept. 2013]).  Moreover, the court properly rejected as speculative the expert's opinion that the City's installation of a sewer grate shortly before the accident created a pothole near the site (see Epperson v. City of New York, 133 A.D.3d 522, 523, 21 N.Y.S.3d 23 [1st Dept. 2015];  see also Vargas, 172 A.D.3d at 553, 98 N.Y.S.3d 749).

We have considered plaintiff's remaining contentions and find them unavailing.