MERRILL v. CITY OF NEW YORK (2019)

Order, Supreme Court, New York County (W. Franc Perry, J.), entered August 11, 2017, which granted the motions of defendants City of New York and E.E. Cruz & Tully Construction Company (C & T) for summary judgment dismissing the complaint, unanimously affirmed, without costs.

C & T established prima facie entitlement to judgment as a matter of law, in this action where plaintiff alleges that she was injured when she tripped and fell on two potholes in the roadway.  C & T submitted, inter alia, the testimony of its employee that neither C & T nor its contractors performed any above-ground work near the site of plaintiff's accident.  In opposition, plaintiff referred to road opening permits that were issued to C & T, but this did not raise a triable issue since C & T's employee explained that the permits were used to establish a lay up area and C & T did not perform roadwork in the area of plaintiff's fall (see Ingles v. Architron Designers & Bldrs, Inc., 136 A.D.3d 605, 25 N.Y.S.3d 603 [1st Dept. 2016];  Bermudez v. City of New York, 21 A.D.3d 258, 799 N.Y.S.2d 497 [1st Dept. 2005] ).

Furthermore, in opposition to the City's showing that it did not have prior written notice of the subject potholes (see Administrative Code of City of N.Y. § 7–201[c][2] ), plaintiff failed to raise an issue of fact.  The work orders and citizen complaint cited by plaintiff were insufficient since the complaint was made by telephone and there was no evidence that the potholes repaired pursuant to the work orders were the same potholes that caused plaintiff's fall (see Stoller v. City of New York, 126 A.D.3d 452, 2 N.Y.S.3d 357 [1st Dept. 2015];  Haulsey v. City of New York, 123 A.D.3d 606, 999 N.Y.S.2d 400 [1st Dept. 2014] ).  Plaintiff failed to establish that the affirmative negligence exception to the Pothole Law applied, because she submitted no evidence that the City undertook any work that immediately resulted in the potholes (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] ).

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