SPEACH v. The City of New York, Defendant-Respondent.

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Supreme Court, Appellate Division, First Department, New York.

Bernadette SPEACH, et al., Plaintiffs-Appellants, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendant, The City of New York, Defendant-Respondent.

Decided: June 24, 2008

TOM, J.P., SAXE, GONZALEZ, NARDELLI, JJ. The Breakstone Law Firm, P.C., Bellmore (Jay L.T. Breakstone of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for respondent.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered January 29, 2007, which granted defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Dismissal of the complaint as against the City was proper in this action where plaintiff was injured when she allegedly tripped and fell in a five-inch deep sinkhole located on a City street.   The record establishes that the City lacked prior written notice of the defective condition as required under Administrative Code of the City of New York § 7-201(c)(2) (Pothole Law), and plaintiff failed to raise a triable issue of fact as to whether the City created the defective condition within the meaning of the exception to the prior written notice requirement, “which requires that the affirmative negligence of the City immediately result in the existence of a dangerous condition” (Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008];  see Bielecki v. City of New York, 14 A.D.3d 301, 788 N.Y.S.2d 67 [2005] ).   Even assuming that the City failed to address the underlying cause of the sinkhole in its prior repair efforts, the condition that caused plaintiff's fall developed over time (see Bielecki, 14 A.D.3d at 302, 788 N.Y.S.2d 67).