SILVA v. CITY OF NEW YORK (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Ruchelsman, J.), dated September 6, 2002, which, upon the granting of the defendant's oral application before trial to dismiss the complaint for failure to comply with the prior written notice provision of the Administrative Code of the City of New York § 7-201(c)(2), dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

 The Supreme Court properly dismissed the plaintiffs' complaint.   The plaintiffs failed to provide the City of New York with prior written notice of the defect which allegedly caused the accident (see Administrative Code of City of New York § 7-201[c][2] ).   Actual or constructive notice does not satisfy this requirement (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 475-476, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Poirier v. City of Schenectady, 85 N.Y.2d 310, 314, 624 N.Y.S.2d 555, 648 N.E.2d 1318;  Harvey v. Monteforte, 292 A.D.2d 420, 421, 738 N.Y.S.2d 394;  Delcamp v. Village of Brocton, 270 A.D.2d 842, 705 N.Y.S.2d 150).   While there was written acknowledgment of the defect from the City which presents an exception to the written notice requirement (see Bruni v. City of New York, 2 N.Y.3d 319, 327, 778 N.Y.S.2d 757, 811 N.E.2d 19), the accident occurred within the grace period provided by the Administrative Code, which gives the city 15 days to repair or remove the defect (see Administrative Code § 7-201[c][2] ).

 The plaintiffs' reliance on another exception to the written notice requirement based on a condition caused by the affirmative negligence of the City (see Amabile v. City of Buffalo, supra at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Kiernan v. Thompson, 73 N.Y.2d 840, 841, 537 N.Y.S.2d 122, 534 N.E.2d 39) is also unavailing.   They contend that this negligence consisted of a failure to repair a water main in an expeditious manner.   A failure to repair is not affirmative behavior necessary to establish that the City created the defective condition (see Gold v. County of Westchester, 15 A.D.3d 439, 790 N.Y.S.2d 675;  Corey v. Town of Huntington, 9 A.D.3d 345, 346, 780 N.Y.S.2d 156;  Vise v. County of Suffolk, 207 A.D.2d 341, 342, 615 N.Y.S.2d 429;   Michela v. County of Nassau, 176 A.D.2d 707, 708, 574 N.Y.S.2d 965).

The plaintiffs' remaining contentions either are unpreserved for appellate review or without merit.