FARRELL v. Grace Industries, Inc., et al., defendants-appellants. (2008)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Battaglia, J.), dated February 15, 2007, as granted that branch of the cross motion of the defendant City of New York which was for summary judgment dismissing the complaint insofar as asserted against it, and the defendants Grace Industries, Inc., El Sol Contracting & Construction, Inc., and Grace Industries, Inc./El Sol Contracting & Construction, Inc., J.V., separately appeal, as limited by their brief, from so much of the same order as granted the cross motion of the defendant City of New York for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the appeal by the defendants Grace Industries, Inc., El Sol Contracting & Construction, Inc, and Grace Industries, Inc./El Sol Contracting & Construction, Inc., J.V., from so much of the order as granted that branch of the cross motion of the defendant City of New York which was for summary judgment dismissing the complaint insofar as asserted against it is dismissed, as those defendants are not aggrieved by that portion of the order;  and it is further,

ORDERED that the order is affirmed insofar as reviewed, with one bill of costs payable to the respondent by the appellants appearing separately and filing separate briefs.

At approximately 6:20 A.M. on May 15, 2002, the plaintiff, a New York City police detective, was driving to work on the Manhattan-bound Gowanus Expressway, approaching the toll booths at the Brooklyn Battery Tunnel, when her vehicle was struck by a metal object, later identified as a brake shoe that had apparently fallen off of a truck.  The object pierced the windshield of the plaintiff's vehicle, striking her in the head.  The plaintiff was rendered unconscious and lost control of her vehicle which crashed into a concrete median and toll booth barrier.  The plaintiff sustained significant injuries as a result of the accident.

In the order appealed from, the Supreme Court, inter alia, granted the City's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it, finding that the City was not given prior written notice of the alleged dangerous condition as required by Administrative Code of the City of New York § 7–201(c)(2).  We affirm the order insofar as reviewed.

 Pursuant to Administrative Code of the City of New York § 7–201(c)(2), a plaintiff must plead and prove that the City had prior written notice of a roadway defect, or dangerous or obstructed condition before it can be held liable for its alleged negligence related thereto (see Estrada v. City of New York, 273 A.D.2d 194, 709 N.Y.S.2d 105).  Transitory conditions present on a roadway or walkway such as debris, oil, ice, or sand have been found to constitute potentially dangerous conditions for which prior written notice must be given before liability may be imposed upon a municipality (see Min Whan Ock v. City of New York, 34 A.D.3d 542, 824 N.Y.S.2d 651;  Estrada v. City of New York, 273 A.D.2d at 194, 709 N.Y.S.2d 105;  White v. Town of Islip, 249 A.D.2d 464, 465, 671 N.Y.S.2d 680;  Almodovar v. City of New York, 240 A.D.2d 523, 658 N.Y.S.2d 446;  Rogers v. Town of Ramapo, 211 A.D.2d 775, 622 N.Y.S.2d 731;  Baez v. City of New York, 236 A.D.2d 305, 653 N.Y.S.2d 926).  The only two exceptions to compliance with prior written notice statutes are where the municipality affirmatively created the alleged defect or dangerous condition, or where a special use conferred a special benefit upon the municipality (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Ferreira v. County of Orange, 34 A.D.3d 724, 724–725, 825 N.Y.S.2d 122).  Neither actual nor constructive notice may substitute or override a prior written notice requirement (see Silva v. City of New York, 17 A.D.3d 566, 567, 793 N.Y.S.2d 478).

 Here, it was undisputed that the City had no prior written notice of the alleged dangerous condition.  Accordingly, the City established its prima facie entitlement to judgment as a matter of law (see Koehler v. Incorp. Village of Lindenhurst, 42 A.D.3d 438, 839 N.Y.S.2d 539;  Ferreira v. County of Orange, 34 A.D.3d at 725, 825 N.Y.S.2d 122).  In opposition, neither the plaintiff nor the other defendants (hereinafter collectively the appellants) raised a triable issue of fact as to whether the allegedly dangerous or obstructed condition was created by any affirmative acts of negligence by the City (see Smith v. Town of Brookhaven, 45 A.D.3d 567, 846 N.Y.S.2d 203;   Ferreira v. County of Orange, 34 A.D.3d at 725, 825 N.Y.S.2d 122).  The mere failure to maintain or repair a roadway constitutes an act of omission rather than an affirmative act of negligence (see Monteleone v. Incorp. Vil. of Floral Park, 74 N.Y.2d 917, 919, 550 N.Y.S.2d 257, 549 N.E.2d 459;  Silva v. City of New York, 17 A.D.3d 566, 568, 793 N.Y.S.2d 478;  Alfano v. City of New Rochelle, 259 A.D.2d 645, 686 N.Y.S.2d 813).

The appellants' remaining contentions either are improperly raised for the first time on appeal or are without merit.