NO SHOWING THAT POTHOLE REPAIR DONE INCORRECTLY; NEW YORK CITY WINS SUMMARY JUDGMENT & CASE DISMISSAL AGAINST ACCIDENT VICTIM

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

Case: Rosenblum v. The City of New York

Date: Nov. 1, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury lawyer)

Comment: The City of New York and other municipal agencies have special rules giving them advantages so they're difficult to sue. This is partly to protect we taxpayers because a city is too large to tend to all little things: if cities could be sued freely, they'd soon be bankrupt. So there's a "prior written notice" rule before a city (such as The City of New York) can be sued for a broken or defective sidewalk--that's assuming that the sidewalk is it's legal responsibility and not the adjacent landowner's (this is a topic for another time). If prior written notice is not given correctly, then the municipality can't be held liable (responsible) in negligence for a broken or defective condition that causes an accident or injury.

However, like so many things in the law, there's an exception to the prior written notice rule. If the defect was "created" by the municipal entity, it can be held liable, even without prior written notice to it.

Now a "created" defect against The City of New York is very difficult to prove. In part, because the records have to come from the city itself--and good luck finding those records. Also, if a plaintiff can show The City of New York did some construction work, the accident victim also has to prove that the work done (such as paving a sidewalk) was defective at the time the work was done. Almost impossible.

In this case, the accident victim tripped and fell in a pothole in crosswalk,, that The City of New York had repaired two years before. With no way to prove the repair was improperly done by the City, mere "wear and tear" leading to a dangerous tripping condition doesn't result in The City of New York being held liable. The City of New York is let out of this case here as the court awards it summary judgment.

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RELATED POSTS:

NO "PRIOR WRITTEN NOTICE" OF BROKEN CURB BY PARKING LOT; TRIP-AND-FALL ACCIDENT VICTIM "?LOSES TO DEFENDANT VILLAGE (Posted by Queens injury lawyer Gary E. Rosenberg on Nov 2, 2011)

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Order, Supreme Court, New York County (Barbara Jaffe, J.), entered August 20, 2010, which, in this action for personal injuries allegedly sustained when plaintiff tripped in a pothole while walking within a crosswalk and fell to the ground, granted defendant City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The record demonstrates that the City did not receive prior written notice of the defect pursuant to Administrative Code of the City of New York Sec. 7-201(c)(2). Accordingly, the burden shifted to plaintiff to establish one of the exceptions to the prior written notice requirement. The only possible exception applicable in this case is that the City's affirmative act of negligence immediately resulted in the existence of a dangerous condition (see Yarborough v. City of New York, 10 N.Y.3d 726, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008]; Oboler v. City of New York, 8 N.Y.3d 888, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [2007]). Contrary to plaintiff's contention, "constructive notice of a defect may not override the statutory requirement of prior written notice of a [roadway] defect" (Amabile v. City of Buffalo, 93 N.Y.2d 471, 475_476, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999]).

Here, a Department of Transportation search of its records revealed that pothole repair and resurfacing work had been performed and completed by the City at the subject location in June 2002, approximately two years before plaintiff's accident. Plaintiff offered no evidentiary support for her claim that the work performed in 2002 immediately resulted in the defective condition complained of in 2004 (see Ocasio v. City of New York, 28 A.D.3d 311, 813 N.Y.S.2d 408 [2006]; Bielecki v. City of New York, 14 A.D.3d 301, 788 N.Y.S.2d 67 [2005]). The mere eventual emergence of dangerous conditions as a result of wear and tear, and environmental factors, does not constitute an act of affirmative negligence (see Hyland v. City of New York, 32 A.D.3d 822, 821 N.Y.S.2d 138 [2006]). Furthermore, _[t]he ... failure to maintain or repair a roadway constitutes an act of omission rather than an affirmative act of negligence_ (Farrell v. City of New York, 49 A.D.3d 806, 808, 854 N.Y.S.2d 470 [2008]).

We have considered plaintiff's remaining arguments, including her claim that further discovery was necessary, and find them unavailing.

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