CIVIC v. Consolidated Edison, Inc., Defendant. (2023)

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered on or about September 3, 2021, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The City met its prima facie burden of demonstrating that it did not receive prior written notice of the crosswalk defect and alleged pothole that plaintiff identified as the cause of her fall as she crossed an intersection and that there was no written acknowledgment of that defect (see Administrative Code of City of N.Y. § 7–201[c][2]).  The City's records did not contain prior written notice of the particular defect in the crosswalk where plaintiff fell (see Haulsey v. City of New York, 123 A.D.3d 606, 999 N.Y.S.2d 400 [1st Dept. 2014];  see also Boniello v. City of New York, 106 A.D.3d 612, 965 N.Y.S.2d 350 [1st Dept. 2013]).  Moreover, “[t]he awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident” (Roldan v. City of New York, 36 A.D.3d 484, 484, 831 N.Y.S.2d 110 [1st Dept. 2007]).

Plaintiff failed to demonstrate the applicability of an exception to the prior written notice rule.  The record contains no evidence that establishes that the City affirmatively created the pothole through its own negligence (see Dunn v. City of New York, 206 A.D.3d 403, 403–404, 169 N.Y.S.3d 620 [1st Dept. 2022];  see also Arzeno v. City of New York, 128 A.D.3d 527, 528, 10 N.Y.S.3d 198 [1st Dept. 2015], lv denied 26 N.Y.3d 914, 2015 WL 9143788 [2015]).  Plaintiff's claim that the City's alleged negligent repair of a defect at the location several months before the incident resulted in an immediate hazardous condition was speculative (see Thompson v. City of New York, 172 A.D.3d 485, 485, 99 N.Y.S.3d 312 [1st Dept. 2019];  see also Trentman v. City of New York, 162 A.D.3d 559, 559–560, 80 N.Y.S.3d 225 [1st Dept. 2018]).

34 RCNY 2–07(b), which requires the City to monitor and maintain its manhole covers and the surrounding 12–inch perimeter, did not vitiate the Administrative Code's prior written notice requirement (see Gori v. City of New York, 171 A.D.3d 1025, 1026, 98 N.Y.S.3d 262 [2d Dept. 2019];  see also Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [2007]).  In any event, plaintiff alleges the cause of her fall was a pothole in the crosswalk, not a manhole cover.

Finally defendant's summary judgment motion was not premature, even in the absence of depositions of the Department of Transportation and Department of Environmental Protection, as the City offered affidavits of those agencies’ employees’ record searches along with the documents the searches produced and plaintiff failed to show that further discovery would lead to relevant evidence (see CPLR 3212[f];  see also Medina–Diaz v. 540 W. 145 LLC, 190 A.D.3d 646, 647, 141 N.Y.S.3d 38 [1st Dept. 2021]).