SALES v. CITY OF NEW YORK (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Rosemarie Montalbano, J.), dated March 10, 2021.  The order granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.

In August 2016, the plaintiff allegedly was walking across Berriman Street in Brooklyn when he stepped into a hole in the roadway, lost his balance, and fell, sustaining injuries.  After timely filing an amended notice of claim, the plaintiff commenced this action against the defendant, City of New York, to recover damages for personal injuries.  The plaintiff moved for summary judgment on the issue of liability, contending that the City affirmatively created the dangerous condition through an act of negligence.  In an order dated March 10, 2021, the Supreme Court granted the motion, and the City appeals.

Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for a defect within the scope of the law unless it has received prior written notice of the defect or an exception to the prior written notice requirement applies (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  see also Administrative Code of City of N.Y. § 7–201[c][2]).  There are two “recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality” (Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873).  The affirmative negligence exception “ ‘is limited to work by the [municipality] that immediately results in the existence of a dangerous condition’ ” (id. [internal quotation marks omitted], quoting Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270;  see DeCaprariis–Salerno v. Incorporated Vil. of Rockville Ctr., 201 A.D.3d 874, 874–875, 157 N.Y.S.3d 739).

Here, in moving for summary judgment on the issue of liability, the plaintiff contended only that the City affirmatively created the dangerous condition through an act of negligence.  However, the evidence submitted by the plaintiff demonstrated that the City repaired a hole in the subject street on November 10, 2014, restoring the area, and that the condition that caused the plaintiff to fall may have existed for “[o]ver a year” prior to the accident.  This evidence failed to establish, prima facie, that the City affirmatively created the condition that allegedly caused the plaintiff's fall, as the plaintiff failed to submit evidence that the dangerous condition existed immediately after the repair was completed or that the repair caused subsequent immediate deterioration (see Thompson v. City of New York, 172 A.D.3d 485, 485, 99 N.Y.S.3d 312;  Wald v. City of New York, 115 A.D.3d 939, 941, 982 N.Y.S.2d 534).  Additionally, the opinion of the plaintiff's expert that the City affirmatively created the dangerous condition was conclusory, speculative, and insufficient to establish the plaintiff's prima facie entitlement to judgment as a matter of law (see Woehrle v. Buono, 232 A.D.3d 820, 821, 221 N.Y.S.3d 215;  Race v. Village of Brewster, 185 A.D.3d 1071, 1072, 128 N.Y.S.3d 562;  Wald v. City of New York, 115 A.D.3d at 941, 982 N.Y.S.2d 534).

Since the plaintiff failed to meet his prima facie burden, we need not consider the sufficiency of the City's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability.

BARROS, J.P., CHRISTOPHER, WAN and TAYLOR, JJ., concur.