WILLIAMS v. NEW YORK CITY DEPARTMENT OF TRANSPORTATION (2023)

Order, Supreme Court, New York (Judy H. Kim, J.), entered June 8, 2022, which, to the extent appealed from as limited by the briefs, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants made a prima facie showing of entitlement to summary judgment in this action which alleges that plaintiff was injured when she tripped on a pothole located on Adam Clayton Powell Jr. Boulevard.  Defendants submitted affidavits from City employees, stating that they had searched the records regarding the roadway where the pothole was located and found that the City had received no written notice of a defective condition.  Defendants also submitted the records that had turned up in the searches, which also showed that the City had received no written notice of the condition (see Cruz v. City of New York, 218 A.D.2d 546, 547, 630 N.Y.S.2d 523 [1st Dept. 1995]).  This evidence was sufficient to establish that defendants had no prior written notice of the pothole as required by the Administrative Code (Administrative Code of the City of New York § 7–201[c][2], [3];  see Tomashevskaya v. City of New York, 161 A.D.3d 511, 512, 73 N.Y.S.3d 433 [1st Dept. 2018]).

In opposition, plaintiff failed to raise an issue of material fact, as she did not submit evidence sufficient to demonstrate the existence of prior written notice (see Sondervan v. City of New York, 84 A.D.3d 625, 625, 924 N.Y.S.2d 54 [1st Dept. 2011]).  Plaintiff relies on the deposition testimony of Kevin Harmon, a claims specialist at the New York City Department of Environmental Protection (DEP), as a well as a public sector work order which, according to plaintiff, showed that defendants had notice of a pothole because they inspected the area several weeks before plaintiff fell.  However, during his deposition, Harmon testified that he was not knowledgeable about that particular type of work order and was not qualified to answer plaintiff's questions related to when the inspection for the work order occurred;  he testified only that it was “possible” that someone had inspected the area several weeks before the accident and determined that a repair was necessary.  In any event, an environmental engineer for the DEP averred that the work order inspection occurred on April 17, 2012, only 11 days before plaintiff's fall. This timeframe is insufficient to impute notice to defendants, as Administrative Code § 7–201(c)(2) states that the City has 15 days to cure a defect.

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