DIAZ v. CITY OF NEW YORK (2008)

In an action to recover damages for personal injuries, the defendant appeals from an amended judgment of the Supreme Court, Kings County (Lewis, J. on liability;  Saitta, J. on damages), dated June 7, 2007, which, upon the denial of its motion pursuant to CPLR 4401 for judgment as a matter of law, and upon a jury verdict on the issue of liability finding it 85% at fault in the happening of the accident and the plaintiff 15% at fault, and a jury verdict on the issue of damages finding that the plaintiff sustained damages in the principal sum of $474,000, is in favor of the plaintiff and against it.

ORDERED that the amended judgment is reversed, on the law, with costs, the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law is granted, and the complaint is dismissed.

The plaintiff commenced this action against the City of New York to recover damages for injuries he allegedly sustained on July 15, 1994, when he tripped and fell over a pothole abutting a manhole cover.  At the close of the plaintiff's case, the defendant moved pursuant to CPLR 4401 for judgment as a matter of law, and the Supreme Court denied the motion.  We reverse.

 “Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained roadway unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies” (Griesbeck v. County of Suffolk, 44 A.D.3d 618, 619, 843 N.Y.S.2d 162).  The prior written notice requirement will be obviated only if the plaintiff establishes that a special use resulted in a special benefit to the locality or that the municipality affirmatively created the defect by performing work that immediately resulted in the existence of a dangerous condition (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;  Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270;  Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).  The affirmative negligence exception “is limited to work by the [defendant] that immediately results in the existence of a dangerous condition” (Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270;  see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;  Marshall v. City of New York, 52 A.D.3d 586, 861 N.Y.S.2d 77;  Bielecki v. City of New York, 14 A.D.3d 301, 788 N.Y.S.2d 67).  Even if a municipality performs negligent pothole repair, where the defect develops over time with environmental wear and tear, the affirmative negligence exception is inapplicable (see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873).

 Here, the plaintiff did not allege that the City received prior written notice of the defect (see Administrative Code of City of N.Y. § 7–201), or that the special use exception to the prior written notice requirement applied.  Rather, he alleged that the City affirmatively created the defect.  However, a witness for the plaintiff testified that the street where the accident occurred had been repaved two or three years before the accident, and the pothole had developed several months after that work was performed.  The plaintiff's expert engineer testified that the pothole formed as a result of improper paving, but that it was likely that it developed over time after use by vehicles.  Under these circumstances, the plaintiff failed to establish, prima facie, that any work performed by the defendant immediately resulted in the dangerous condition (see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;  Oboler v. City of New York, 8 N.Y.3d at 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270;  Marshall v. City of New York, 52 A.D.3d 586, 861 N.Y.S.2d 77;  Gagnon v. City of Saratoga Springs, 51 A.D.3d 1096, 1097–1098, 858 N.Y.S.2d 797;  Bogorova v. Incorporated Vil. of Atl. Beach, 51 A.D.3d 840, 841, 858 N.Y.S.2d 349).

Contrary to the plaintiff's contention, the appeal from the judgment brings up for review the court's ruling on the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law (see CPLR 5501[a] ).

In light of our determination, we need not reach the defendant's remaining contention.