KALES v. CITY OF NEW YORK (2019)

Order, Supreme Court, New York County (James E. d'Auguste, J.), entered June 13, 2017, which deemed defendant's motion for summary judgment dismissing the complaint a motion to dismiss pursuant to CPLR 3211(a)(7), granted the motion, and dismissed the complaint, unanimously affirmed, without costs.

No action may be maintained against the City of New York as a result of injury arising from a dangerous, defective, unsafe, or obstructed condition on its, inter alia, streets or sidewalks unless the City received prior written notice of such condition and failed to repair it within 15 days of such notice (Administrative Code of City of N.Y. § 7–201[c][2] ).  Failure to “plead and prove” such prior written notice requires dismissal of the complaint (Katz v. City of New York, 87 N.Y.2d 241, 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374 [1995];  Kelly v. City of New York, 172 A.D.2d 350, 352, 568 N.Y.S.2d 744 [1st Dept. 1991] ).

Plaintiff failed to assert in the notice of claim or plead in the complaint that defendant had prior written notice of the roadway defect that allegedly caused her accident.  In any event, she does not dispute that the evidence submitted by the City established that it had received no such prior written notice.

Moreover, while an exception to the prior written notice requirement applies where the City caused or created the dangerous condition (Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ), plaintiff never asserted such a theory in her notice of claim or complaint and she is precluded from doing so in opposition to defendant's motion after the statute of limitations has expired (Semprini v. Village of Southampton, 48 A.D.3d 543, 544–545, 852 N.Y.S.2d 208 [2d Dept. 2008], citing Mahase v. Manhattan & Bronx Surface Tr. Operating Auth., 3 A.D.3d 410, 411, 771 N.Y.S.2d 99 [1st Dept. 2004] ).  In any event, even if she could assert such a theory through the disclosure she served for her expert, as she seeks to do, his contention that the roadway “was foreseeably caused to deteriorate over time from weather conditions and vehicular traffic” is not the type of affirmative act of negligence “that immediately results in the existence of a dangerous condition” that is necessary to support the caused or created exception to the prior written notice requirement (Yarborough, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873).

Although defendant framed its motion as seeking summary judgment dismissing the complaint, because plaintiff failed to state a meritorious cause of action, Supreme Court did not err in treating it as a motion to dismiss pursuant to CPLR 3211(a)(7) (see Ganzenmuller v. Incorporated Vil. of Port Jefferson, 18 A.D.3d 703, 704, 795 N.Y.S.2d 744 [2d Dept. 2005] ) which may be made at any time (CPLR 3211[e] ).