Opinion
6074 Index 150565/11
03-22-2018
Cleven JONES, Plaintiff–Appellant, v. CITY OF NEW YORK, et al., Defendants–Respondents, Consolidated Edison Company of New York, Inc., et al., Defendants.
Asher & Associates, PC, New York (Jeffrey B. Manca of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Richard Dearing of counsel), for respondents.
Asher & Associates, PC, New York (Jeffrey B. Manca of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Richard Dearing of counsel), for respondents.
Renwick, J.P., Manzanet–Daniels, Kahn, Kern, Singh, JJ.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered on or about May 26, 2016, which granted the motion of defendants City of New York and New York City Department of Transportation (DOT) for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Defendants met their initial burden of showing that they lacked prior written notice of the subject pothole that caused plaintiff's accident by submitting an affidavit of a DOT record searcher regarding the results of the search she performed of the pertinent DOT electronic databases, and the corresponding paper records search she requested (see Campisi v. Bronx Water & Sewer Serv., 1 A.D.3d 166, 766 N.Y.S.2d 560 [1st Dept 2003] ). A citizen complaint, lodged almost five months before plaintiff's accident, does not create a triable issue as to whether defendants had prior written notice of the defect, because the DOT highway repair person sent to the location found that the defect had been repaired (see Worthman v. City of New York, 150 A.D.3d 553, 56 N.Y.S.3d 43 [1st Dept. 2017] ; Abott v. City of New York, 114 A.D.3d 515, 980 N.Y.S.2d 440 [1st Dept. 2014] ).
Plaintiff presented no evidence regarding the condition of the asphalt immediately after the repair (see Oboler v. City of New York, 8 N.Y.3d 888, 889–890, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [2007] ; Walker v. City of New York, 34 A.D.3d 226, 825 N.Y.S.2d 445 [1st Dept. 2006] ). Even assuming that defendants failed to address the underlying cause of the pothole during their prior repair efforts, the record shows that the condition which caused the accident developed over time (see Speach v Consolidated Edison Co. of N.Y., Inc., 52 A.D.3d 404, 860 N.Y.S.2d 99 [1st Dept. 2008] ).