Opinion
2015-07-29
Gloria RODRIGUEZ, appellant, v. CITY OF NEW YORK, respondent, et al., defendants.
The Edelsteins, Faegenburg & Brown, LLP, New York, N.Y. (Paul J. Edelsteinand Louis A. Badolato of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein, Andrew Potak, and Susan P. Greenberg of counsel), for respondent.
The Edelsteins, Faegenburg & Brown, LLP, New York, N.Y. (Paul J. Edelsteinand Louis A. Badolato of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein, Andrew Potak, and Susan P. Greenberg of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ash, J.), dated July 31, 2013, which granted the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
The plaintiff allegedly sustained injuries when she tripped and fell over a raised portion of asphalt near a bus stop on Kings Highway in Brooklyn. The defendant City of New York moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it did not have prior written notice of the subject roadway defect and that it did not create the roadway defect through an affirmative act of negligence. The plaintiff opposed and argued, as she does on appeal, that prior written notice of the physical defect in the roadway where she tripped and fell was not required because the City negligently designed the roadway, in violation of New York City Department of Transportation construction standards, by failing to construct it with a concrete bus pad that would have prevented formation of the defect. The Supreme Court granted the City's motion, finding that the plaintiff failed to raise a triable issue of fact by neglecting to allege in her notice of claim an affirmative act theory of negligence.
Administrative Code of the City of New York § 7–201(c) requires a plaintiff to “ ‘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’ ” (Minew v. City of New York, 106 A.D.3d 1060, 1061, 966 N.Y.S.2d 476, quoting Hubbard v. City of New York, 84 A.D.3d 1313, 1315, 924 N.Y.S.2d 533; see Bartels v. City of New York, 125 A.D.3d 583, 585, 6 N.Y.S.3d 60). “Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City” (Bartels v. City of New York, 125 A.D.3d at 585, 6 N.Y.S.3d 60). The two recognized exceptions to the prior written notice requirement are where the defect or hazard results from an “affirmative act of negligence” by the municipality, or a special use by the municipality that conferred a special benefit from it (Methal v. City of New York, 116 A.D.3d 743, 743–744, 984 N.Y.S.2d 71; accord Minew v. City of New York, 106 A.D.3d at 1061, 966 N.Y.S.2d 476). Only when one of these exceptions applies is the written notice requirement obviated ( see Carlucci v. Village of Scarsdale, 104 A.D.3d 797, 798, 961 N.Y.S.2d 318).
The plaintiff's contention that the City failed to install a concrete bus pad, resulting in the formation of a physical defect in the roadway which caused her to fall, does not amount to an “affirmative act of negligence.” Thus, the plaintiff's claim requires prior written notice pursuant to Administrative Code of the City of New York § 7–201(c) ( see Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 366, 275 N.Y.S.2d 505, 222 N.E.2d 376; Bartels v. City of New York, 125 A.D.3d at 585, 6 N.Y.S.3d 60). The City established its prima facie entitlement to judgment as a matter of law with evidence that it did not have prior written notice of the roadway defect and that the affirmative act exception to the prior written notice requirement alleged in the pleadings does not apply ( see Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270; Steins v. Inc. Village of Garden City, 127 A.D.3d 957, 957, 7 N.Y.S.3d 419; Carlucci v. Village of Scarsdale, 104 A.D.3d at 798, 961 N.Y.S.2d 318; Schleif v. City of New York, 60 A.D.3d 926, 928, 875 N.Y.S.2d 259; Corey v. Town of Huntington, 9 A.D.3d 345, 345, 780 N.Y.S.2d 156). In opposition, the plaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit.