Opinion
Index 115584/10 590455/11
02-06-2018
Barbara KALSMITH, Plaintiff–Appellant, v. The CITY OF NEW YORK, et al., Defendants–Respondents, Consolidated Edison Company of New York, Inc., Defendant. [And a Third–Party Action]
Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury (Michael F. Schwartz of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Shannon Colabrese of counsel), for respondents.
Salenger, Sack, Kimmel & Bavaro, LLP, Woodbury (Michael F. Schwartz of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Shannon Colabrese of counsel), for respondents.
Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered August 26, 2016, which, insofar as appealed from as limited by the briefs, granted defendants the City of New York and New York City Department of Transportation's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants made a prima facie showing that they did not have prior written notice of the defective roadway condition that allegedly caused plaintiff to trip and fall (see Administrative Code of City of N.Y. § 7–201[c][2]; Yarborough v. City of New York , 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ). Although the FITS reports submitted by defendants showed the existence of potholes at the accident site during the nearly two years prior to plaintiff's accident, there was no proof that any of these defects, which were all repaired, were the cause of plaintiff's accident (see Worthman v. City of New York , 150 A.D.3d 553, 554, 56 N.Y.S.3d 43 [1st Dept. 2017] ). "The awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident" ( Roldan v. City of New York , 36 A.D.3d 484, 484, 831 N.Y.S.2d 110 [1st Dept. 2007] ).
In opposition, plaintiff failed to raise a triable issue of fact. There is no evidence that defendants created the defective condition, and therefore that exception to the prior written notice requirement does not apply (see Yarborough , 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ). Moreover, neither actual nor constructive notice of the defect may substitute for prior written notice (see Campisi v. Bronx Water & Sewer Serv. , 1 A.D.3d 166, 167, 766 N.Y.S.2d 560 [1st Dept. 2003] ; see also Amabile v. City of Buffalo , 93 N.Y.2d 471, 475–476, 693 N.Y.S.2d 77, 715 N.E.2d 104 [1999] ).
We have considered plaintiff's remaining arguments and find them unavailing.