THOMPSON v. CITY OF NEW YORK (2019)

Order, Supreme Court, New York County (Alexander M. Tisch, J.), entered January 10, 2018, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established prima facie entitlement to judgment as a matter of law, in this action where plaintiff was injured when he tripped and fell on broken and uneven pavement, by showing that it did not have prior written notice of the dangerous or defective condition (see Jones v. City of New York, 159 A.D.3d 571, 70 N.Y.S.3d 45 [1st Dept. 2018]).

In opposition, plaintiff failed to raise an issue of fact.  There is no evidence that defendant actually applied a cold patch instead of, as it claims, a hot patch when it cured the condition approximately six months prior to plaintiff's accident (see id. at 572, 70 N.Y.S.3d 45; Abott v. City of New York, 114 A.D.3d 515, 980 N.Y.S.2d 440 [1st Dept. 2014]).  Even if defendant had applied a cold patch, and only temporarily cured the condition, plaintiff has offered no evidence that doing so was inadequate, or that such allegedly inadequate repairs immediately resulted in the dangerous condition that caused his accident (see Davison v. City of Buffalo, 96 A.D.3d 1516, 1518, 947 N.Y.S.2d 702 [4th Dept. 2012]; see generally Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008]).  In any event, plaintiff has disclaimed this theory of liability on appeal.

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