WOODARD v. CITY OF NEW YORK (1999)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated March 29, 1998, which granted the separate motions of the defendant New York City Transit Authority and the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

 Contrary to the plaintiffs' contention, the Supreme Court properly granted the motion of the New York City Transit Authority (hereinafter the NYCTA) for summary judgment dismissing the complaint.   The NYCTA had no general duty to maintain or repair the City roadway situated beneath its elevated train station, and the plaintiffs offered only speculation to support their belief that the defect in the roadway may have been caused by the NYCTA's routing of surface water from the train station to the street below (see generally, Gomes v. Courtesy Bus Co., 251 A.D.2d 625, 676 N.Y.S.2d 196;  Valentin v. Hirsch Elec. Co., 245 A.D.2d 285, 666 N.Y.S.2d 17;  Thomas v. New York City Tr. Auth., 194 A.D.2d 663, 599 N.Y.S.2d 127).   We note in this regard that the deposition testimony of a NYCTA engineer did not support the plaintiffs' theory.   Moreover, the unsworn affirmation of the plaintiffs' engineering expert did not constitute competent evidence (see, CPLR 2106;  Rameau v. King, 245 A.D.2d 557, 666 N.Y.S.2d 513;  Gill v. O.N.S. Trucking, 239 A.D.2d 463, 657 N.Y.S.2d 452) and, in any event, would have been insufficient to raise a triable issue of fact (see generally, Colvin v. Town of Huntington, 170 A.D.2d 644, 567 N.Y.S.2d 359).

 Similarly, summary judgment was properly awarded to the City, inasmuch as the plaintiffs failed to demonstrate that the prior written notice requirement had been satisfied (see, Administrative Code of the City of New York § 7-201[c][2];  Katz v. City of New York, 87 N.Y.2d 241, 638 N.Y.S.2d 593, 661 N.E.2d 1374;  Almodovar v. City of New York, 240 A.D.2d 523, 658 N.Y.S.2d 446), and the record is barren of any evidence indicating that there was affirmative negligence on the part of the City which caused or contributed to the alleged defect (see, Monteleone v. Incorporated Vil. of Floral Park, 74 N.Y.2d 917, 550 N.Y.S.2d 257, 549 N.E.2d 459;  Green v. City of New York, 233 A.D.2d 295, 649 N.Y.S.2d 171;  Miller v. City of New York, 217 A.D.2d 537, 629 N.Y.S.2d 74).

MEMORANDUM BY THE COURT.