Opinion
February 1, 1993
Appeal from the Supreme Court, Queens County (Nahman, J.).
Ordered that the judgment is affirmed, with costs.
In this action to recover damages caused by an allegedly defective condition in a roadway, the court properly granted the respondent's motion pursuant to CPLR 4401 to dismiss the complaint on the ground that the City had not received prior written notice of the condition as required by Administrative Code of the City of New York § 7-201 (c) (2). Although prior written notice is not required where it is claimed that the municipality was affirmatively negligent in causing or creating the defective condition (see, Kiernan v Thompson, 73 N.Y.2d 840, 841-842; Zash v County of Nassau, 171 A.D.2d 743, 745), there was no proof that the independent contractor hired by the City created the condition complained of (cf., Combs v Incorporated Vil. of Freeport, 139 A.D.2d 688). Eiber, J.P., O'Brien, Ritter and Copertino, JJ., concur.