YARBOROUGH v. CITY OF NEW YORK (2006)

In an action to recover damages for personal injuries, the defendant the City of New York appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated October 25, 2004, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendant is severed.

The plaintiff was injured when he stepped into a pothole on East 57th Street adjacent to the Harry Maze Playground in Brooklyn.   The City of New York established, prima facie, its entitlement to summary judgment by showing that it had no prior written notice of the alleged dangerous condition.   In opposition, the plaintiff argued that the City created the defective condition through an affirmative act of negligence (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).   The Supreme Court denied the City's motion.   We reverse.

Whether or not the Supreme Court improvidently exercised its discretion in considering the plaintiff's expert affidavits submitted in opposition to the motion for summary judgment (compare Ortega v. New York City Tr. Auth., 262 A.D.2d 470, 692 N.Y.S.2d 131, with Blade v. Town of N. Hempstead, 277 A.D.2d 268, 269, 715 N.Y.S.2d 735), the plaintiff's submissions were insufficient to raise a triable issue of fact as to whether the City created the defect through an affirmative act of negligence, which is an exception to the City's prior written notice requirement under New York City Administrative Code § 7-201(c)(2) (see Amabile v. City of Buffalo, supra;  Kiernan v. Thompson, 73 N.Y.2d 840, 841-842, 537 N.Y.S.2d 122, 534 N.E.2d 39;  Mayer v. Town of Brookhaven, 266 A.D.2d 360, 361, 698 N.Y.S.2d 312).   The plaintiff's engineers submitted sufficient evidence that the City was the only entity that could have been responsible for the allegedly defective street repair, and outlined the manner in which the repair deviated from relevant construction industry practices (see Rochford v. City of Yonkers, 12 A.D.3d 433, 434, 786 N.Y.S.2d 535).   However, the plaintiff submitted no evidence as to when the street repair occurred in relation to the accident or that the repair immediately resulted in a dangerous condition (see Bielecki v. City of New York, 14 A.D.3d 301, 788 N.Y.S.2d 67).   The mere “eventual” emergence of a dangerous condition as a result of wear and tear and environmental factors, as described by one of the plaintiff's experts, does not constitute an affirmative act of negligence that abrogates the need to comply with prior written notice requirements (see Lopez v. G & J Rudolph, 20 A.D.3d 511, 512, 799 N.Y.S.2d 254;  Gold v. County of Westchester, 15 A.D.3d 439, 790 N.Y.S.2d 675;   Bielecki v. City of New York, supra;  Corey v. Town of Huntington, 9 A.D.3d 345, 346, 780 N.Y.S.2d 156;  Carbo v. City of New York, 275 A.D.2d 439, 713 N.Y.S.2d 74).   Accordingly, the plaintiff failed to raise a triable issue of fact in opposition to the City's motion for summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562-563, 427 N.Y.S.2d 595, 404 N.E.2d 718).