DANIELS v. CITY OF NEW YORK (2006)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Elliot, J.), dated March 23, 2005, which granted the defendant's motion pursuant to CPLR 4404 to set aside a jury verdict in favor of the plaintiff and against it, and to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

 The Supreme Court correctly determined that the plaintiff failed to submit legally sufficient evidence as to whether the defective roadway condition upon which she fell was created through the sort of “affirmative act of negligence” contemplated by Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 (see Albright v. City of New York, 25 A.D.3d 577, 807 N.Y.S.2d 146).   Although there was evidence that the defendant, City of New York, undertook to repair the subject roadway eight years before the plaintiff's accident, there was legally insufficient proof that the defective condition existed immediately upon the City's completion of the repair work, or that the deterioration of the roadway was caused by the City's repair, instead of developing over a period of time (see Lopez v. G & J Rudolph, 20 A.D.3d 511, 512-513, 799 N.Y.S.2d 254;  Gold v. County of Westchester, 15 A.D.3d 439, 440, 790 N.Y.S.2d 675;  Bielecki v. City of New York, 14 A.D.3d 301, 302, 788 N.Y.S.2d 67;  Corey v. Town of Huntington, 9 A.D.3d 345, 346, 780 N.Y.S.2d 156;  Arias v. City of New York, 284 A.D.2d 354, 355, 725 N.Y.S.2d 394;  Carbo v. City of New York, 275 A.D.2d 439, 713 N.Y.S.2d 74;  Capobianco v. Mari, 272 A.D.2d 497, 708 N.Y.S.2d 428;  cf. Cendales v. City of New York, 25 A.D.3d 579, 807 N.Y.S.2d 414;  Abreu v. City of New York, 14 A.D.3d 469, 788 N.Y.S.2d 150).   Because it is undisputed that the City was not provided with prior written notice of the defect (see Administrative Code of the City of New York § 7-201[c][2] ), the Supreme Court correctly granted the City's motion pursuant to CPLR 4404 to set aside the verdict in favor of the plaintiff and to dismiss the complaint.