Opinion
11200 Index 24177/13
03-05-2020
Jonathan DALMASI, etc., Plaintiff–Respondent, v. The CITY OF NEW YORK, Defendant–Appellant.
Georgia M. Pestana, Acting Corporation Counsel, New York (Diana Lawless of counsel), for appellant. Law Office of Stephen B. Kaufman, P.C., Bronx (John V. Decolator of counsel), for respondent.
Georgia M. Pestana, Acting Corporation Counsel, New York (Diana Lawless of counsel), for appellant.
Law Office of Stephen B. Kaufman, P.C., Bronx (John V. Decolator of counsel), for respondent.
Richter, J.P., Mazzarelli, Oing, Moulton, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about October 19, 2017, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendant established its prima facie entitlement to summary judgment in this action where plaintiff's decedent was injured when she tripped and fell due to a pothole in the roadway. Defendant submitted evidence showing that it did not have prior written notice of the alleged defect, as required by Administrative Code of City of N.Y. § 7–201(c)(2).
In opposition, plaintiff failed to raise a triable issue of fact as to whether an exception to the prior written notice requirement applies (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ). There is no evidence that the alleged negligent repair of the accident site immediately caused the defect at issue (see Martin v. City of New York, 158 A.D.3d 527, 528, 68 N.Y.S.3d 705 [1st Dept. 2018] ; Wald v. City of New York, 115 A.D.3d 939, 941, 982 N.Y.S.2d 534 [2d Dept. 2014] ). Plaintiff's expert's theory as to how defendant departed from good and accepted practice when it allegedly repaired the subject roadway months earlier is speculative (see Worthman v. City of New York, 150 A.D.3d 553, 56 N.Y.S.3d 43 [1st Dept. 2017] ; see also Flynn v. City of New York, 154 A.D.3d 488, 488–489, 61 N.Y.S.3d 483 [1st Dept. 2017] ).