Opinion
Index No: 20594/09
04-29-2014
OLGA PEREZ, Plaintiff(s), v. THE CITY OF NEW YORK AND THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION, Defendant(s).
DECISION AND ORDER
In this action for the negligent maintenance of the public roadway, plaintiff moves seeking an order (1) pursuant to CPLR § 3212 granting her summary judgment against defendants on grounds that, inter alia, their failure to comply with New York City Administrative Code § 7-201(c)(3) and (4) should estop them from contesting the issue of prior written notice and should, therefore, result in the grant of summary judgment on that issue in her favor; and (2) pursuant to CPLR § 3124 compelling defendants to produce another witness for depositions, specifically, the Commissioner of the Department of Transportation, to testify about defendants' compliance, or lack thereof, with § 7-201(c)(3) and (4). Saliently, in support of her motion for summary judgment, plaintiff avers that defendants, in failing to keep a public and indexed record of all written complaints received and acknowledgments issued regarding complaints about defects on its sidewalks and roadways, have failed to comply with § 7-201 and that such failure warrants the remedy of estoppel, thereby barring defendants from asserting the absence of prior written notice pursuant to § 7-201(c)(2). With respect to plaintiff's motion to compel a further deposition, her moving papers are bereft of any reasons supporting such relief and only in her reply does she aver that the witnesses produced thus far could not testify regarding defendants recordkeeping practices. Defendants oppose plaintiff's motion asserting that plaintiff fails to establish all the essential elements of estoppel and, therefore, fail to establish entitlement to summary judgment. Moreover, defendants argue that the witnesses produced sufficiently testified about the relevant issues in this action, namely a search performed by defendants and the results of said search.
Defendants cross-move for an order granting them summary judgment thereby dismissing the complaint. Defendants aver that because they had no prior written notice of the defect alleged to have caused plaintiff's accident, summary judgment in their favor is warranted. Plaintiff opposes defendants' motion alleging, inter alia, that defendants' searches were inadequate and that in any event, the defect alleged was caused and created by defendants thereby obviating the need to establish prior written notice.
For the reasons that follow hereinafter, plaintiff's motion is denied and defendants' cross-motion is granted.
The instant action is for personal injuries allegedly sustained by plaintiff on September 18, 2008 while traversing the roadway located on Spencer Terrace, Bronx, NY, and more specifically, the roadway between 6209 and 6211 Spencer Terrace. Within her bill of particulars, plaintiff alleges that while traversing the aforementioned the roadway on that date, she tripped and fell on a hazardous, defective, and dangerous condition, namely, an uneven and sunken portion of the roadway. Plaintiff alleges that defendants were negligent with respect to the maintenance and ownership of the roadway and that this negligence caused her accident and resulting injuries.
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Thus, a defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively demonstrating, with evidence, the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof (Mondello v DiStefano, 16 AD3d 637, 638 [2d Dept 2005]; Peskin v New York City Transit Authority, 304 AD2d 634, 634 [2d Dept 2003]). Once movant meets the initial burden on summary judgment, the burden shifts to the opponent who must then produce sufficient evidence, generally also in admissible form, to establish the existence of a triable issue of fact (Zuckerman at 562).
Plaintiff's Motion for Partial Summary Judgment and to Compel a Further EBT
Plaintiff's motion for partial summary judgment is denied. Saliently, plaintiff seeks resolution in her favor of whether defendants received prior written notice of the condition alleged to have caused plaintiff's accident on grounds of estoppel. However, as will be discussed hereinafter, this remedy is completely unsupported by prevailing case law and, assuming arguendo, that estoppel - on grounds that defendants' violated § 7-201(c)(3)and (4) - could allow plaintiff to proceed without establishing prior written notice and could bar defendants from asserting, a defense thereunder, plaintiff nevertheless fails to establish an element essential to the remedy of estoppel - namely, reliance.
It is well settled that "the purpose of a prior written notice provision is to place a municipality on notice that there is a defective condition on publicly-owned property which, if left unattended, could result in injury" (Gorman v Town of Huntington, 12 NY3d 275, 279 [2009]). Prior written notice provisions, thus, seek to strike a balance between a municipality's duty to maintain its roadways and sidewalks in a reasonably safe condition, and the reality that municipalities, due to the sheer number of sidewalks and roadways they are charged to maintain, cannot be aware of "every dangerous condition on its streets and public walkways" (Poirier v City of Schenectady, 85 NY2d 310, 314 [1995]; Gorman at 279). Hence, compliance with the prior written notice provision is a condition precedent to sue, which to the extent "enacted in derogation of common law, [must] always [be] strictly construed," (Gorman at 279; Poirier at 313). Unless a plaintiff establishes the that the municipality had prior written notice of the defect alleged to have caused injury for the period of time prescribed by the relevant provision and that the municipality failed to or neglected to remedy the defect within a reasonable time thereafter, a municipality is excused from liability absent proof of a cognizable exception (Poirier at 313; Barry v Niagara Frontier Tr. Sys., 35 NY2d 629, 633-634 [1974]).
Here, plaintiff points to § 7-201(c)(3), which requires that "[t]he commissioner of transportation shall keep an indexed record in a separate book of all written notices which the city receives and acknowledgment of which the city gives of the existence of such defective, unsafe, dangerous or obstructed conditions." She also points to § 7-201(c)(4), which requires that"[w]ritten acknowledgment shall be given by the department of transportation of all notices received by it." Plaintiff avers that since it is undisputed that defendants do not keep a public indexed record of notices received nor provide written acknowledgment of such notices, defendants have, are, and continue to violate the foregoing provision. Such violation, plaintiff contends warrants that they be estopped from asserting the prior written notice provision as a bar to liability in this action.
While it is certainly true that defendants do not comply with § 7-201(c)(3) or (4), the law simply does not provide for the result urged by plaintiff. Instead, the failure to comply with the portions of a prior written notice law reguiring a public index of complaints and acknowledgment of the same results in nothing more than obligating the municipal defendant to undertake a search of its internal records for relevant documents (Mollahan v Village of Port Washington N., 153 AD2d 881, 884 [2d Dept 1989], lv denied 76 NY2d 707 [1990] ["Absent an indexed record, the village must undertake the burden of conducting a diligent, good-faith search of its internal records."]; Caramanica v City of New Rochelle, 268 AD2d 496, 497 [2d Dept 2000] ["The plaintiffs' contention that the City failed to maintain indexed records of notices received is unavailing. When presented with such a failure, the burden shifts to the municipality to show that it made a diligent and good-faith search of its internal records."]). In Mollahan, plaintiff sought summary judgment in her favor arguing that defendant's failure to comply with the portions of the applicable prior written notice law - requiring a public index of prior complaints - warranted summary judgment in her favor (Mollahan at 882). The Appellate Division reversed the trial court's grant of summary judgment, asserting that courts
must read statutes as they are written and, if the consequences seem unwise, unreasonable or undesirable, the argument for change is to be addressed to the Legislature, not to the courts(Mollahan at 884). Thus, the Appellate Division reasoned that "a court may not, in order to make it more effective, read into the statute a provision which the Legislature did not see fit to enact," and with regard to a prior written notice provision, a "court may not relieve a plaintiff of the burden of pleading and proving prior written notice" (id. at 884). The court in Mollahan, therefore, held that the failure to comply with the portions of the prior written notice provision mandating a public index of complaints and written acknowledgment of any complaints received is the imposition upon the municipal defendant of "the burden of conducting a diligent, good-faith search of its internal records" (id. at 885). The court in Caramanica, citing Mollahan, came to the very same conclusion (Caramanica at 497).
Accordingly, contrary to plaintiff's assertion, defendants' failure to keep a public index of complaints or of acknowledgments does not result in estoppel. In fact, in Gorman v Town of Huntington (12 NY3d 275 [2009]), the Court of Appeals addressed a very similar issue, namely, whether estoppel could result from a municipality's failure to strictly comply with the mandates of its prior written notice provision, concluding, that it could not (id. at 280). In Gorman, defendant, a municipality had a prior written notice provision requiring prior written notice of a defective condition on a sidewalk as a condition precedent to liability (id. at 278). The provision required notice upon the defendant's Town Clerk or Highway Superintendent (id.). Prior to plaintiff's accident, defendant had delegated responsibility for the maintenance of its sidewalks to its Department of Engineering Services, to whom prior written notice of the defect alleged to have caused plaintiff's accident had been provided (id.). Defendant, averring that neither its Town Clerk or Highway Superintendent had received the requisite written notice, moved for summary judgment and plaintiff opposed, arguing that by delegating the duty imposed by its prior notice provision, defendant failed to strictly comply with the provision (id.). Therefore, plaintiff sought to estop defendant from using the provision as a defense to her claim (id.). The Court of Appeals, concluding that "[p]rior written notice provisions, enacted in derogation of common law, are always strictly construed" (id. at 279), held that estoppel was not one of the two exceptions to the prior written notice provisions recognized by law (id.). Moreover, the Court held, that assuming arguendo, that estoppel could serve to obviate compliance with a prior written notice provision, plaintiff had nonetheless failed to establish that she had relied on either the complaint sent to the Department of Engineering Services or any assurances from defendant that it would endeavor to repair the condition (id. at 280).
Reliance, of course, is an essential element of estoppel, which with respect to a municipal defendant requires proof that
a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice, that subdivision should be estopped from asserting a right or defense which it otherwise could have raised(Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976]).
Based on the foregoing, plaintiff's motion for partial summary judgment on grounds of estoppel is denied because as a matter of law, such remedy is unavailable under the circumstances alleged. Assuming arguendo, that such remedy was available, she nevertheless fails to establish reliance, an essential element of estoppel. Nothing submitted by plaintiff in support of her motion, including the transcript of her 50-h hearing establishes that defendants made any assurances to her about repairing the defect alleged and that, therefore, she relied upon the same.
Plaintiff's reliance on Bender is misplaced inasmuch as the facts are inapposite. Bender, involved two separate actions, both of which were against the New York City Health and Hospitals Corporation (HHC), which upon its creation, constituted an entity, separate and apart from the City of New York (the City) and upon which service of a notice of claim was a precondition to sue (id. at 665). Plaintiffs in Bender, relying on GML § 50-e, served notices of claim upon the City, rather than HHC as required by law. (id.). Despite the fact that HHC was never served with notices of claim, it nevertheless defended plaintiffs' actions, medically examining both and taking testimony from one (id. at666-667). At some point, thereafter, HHC moved t dismiss one of the actions for failure to comply with its notice of claim provisions and opposed the other's motion for leave to serve a late notice of claim (id.). On appeal, the court held that "when estoppel can be established compliance with notice of claim provisions should be excused to be a fair and just accommodation of competing interests" (id. at 669). The court in Bender did not actually conclude that estoppel applied in the cases before it, but did hold that under certain circumstances it could and, thus, remanded the action for further proceedings (id.). To the extent that on remand, the questions for which the court sought answers included how long HHC and the City refrained from strictly applying the statute reguiring service of a notice of claim on HHC and the duties and obligations of those charged with receiving notices of claim, it is clear that the disposotive issue in Bender was plaintiffs' reliance on HHC and the City's conduct - namely their failure to apprise plaintiffs that they had filed the notice of claim on the wrong entity - choosing to defend the action of the merits instead (id.).
Here, nothing indicates that defendants induced plaintiff's reliance. Nor, does plaintiff even claim the same. Instead, the sole basis for estoppel is defendants' purported violation of § 7-201(c)(3) and (4), which as noted above, cannot result in estoppel as a matter of law.
Plaintiff's motion seeking partial summary judgment on liability on grounds that the defendants caused and created the condition alleged to have caused her accident is also denied insofar as plaintiff fails to establish prima facie entitlement to summary judgment.
It is certainly true that where a municipal defendant affirmatively creates the condition alleged to have caused plaintiff's accident, the absence of prior written notice is no barrier to liability (Elstein v City of New York, 209 AD2d 186, 186-187 [1st Dept 1994]; Bisulco v City of New York, 186 A.D.2d 85, 85 [1st Dept 1992]). A plaintiff seeking to proceed on a theory that the municipality created the defect alleged, however, must establish that the defective condition was improperly installed so as to bring the defect out of the ambit of ordinary wear and tear (Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Oboler v City of New York, 8 NY3d 888, 890 [2007]). Stated differently, the proponent of a claim that a municipal defendant created a dangerous condition must establish that work performed by the municipal defendant was negligently performed such that it "immediately result[ed] in the existence of [the] dangerous condition" alleged [Yarborough at 728 [internal quotation marks omitted]).
Here, plaintiff's evidence falls woefully short of establishing that defendants caused and created the condition at issue. In support of her contention, plaintiff submits photographs of a badly cracked roadway and the deposition transcript of Arturo Morales (Morales), a highway repairer employed by defendant THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION (DOT), who testified, in relevant part, that any repairs made to the area upon which plaintiff alleges to have tripped and fallen were not made using liquid asphalt. As a result, Morales testified that weeks or months later the repairs would eventually fail or break apart, needing to be repaired anew.
Based on the foregoing, plaintiff avers that it is clear that defendants negligently repaired the situs of the instant accident prior to her accident and that as such, summary judgment in her favor is warranted. Plaintiff's argument is meritless. As discussed above, to meet her burden on a theory that defendants caused and created the defective condition alleged, she has to establish that defendants' repair of the location alleged "immediately result[ed] in the existence of [the] dangerous condition" alleged (Yarborough at 728 [internal quotation marks omitted]). Contrary to plaintiff's contention, a photograph of a badly cracked sidewalk certainly does not satisfy the requisite burden and indeed, does nothing more than invite the Court to speculate. A picture of a defective condition, standing alone, gives rise to several inferences, only one of which is that it was caused by its negligent installation or repair. Moreover, contrary to plaintiff's assertion, Morales' testimony does not establish that defendants negligently repaired the location at issue. To conclude that because a defective condition was repaired by a means, which would quickly wear and tear over time is tantamount to negligence is absurd. In fact, it is precisely because roadways and sidewalks wear and tear over time, even if properly repaired and/or installed, that the Court of Appeals sought fit to promulgate the rule in both Yarborough and Oboler, requiring proof of negligence at the time of repair or installation of a sidewalk. Were this Court to adopt plaintiff's reasoning - that knowledge that a repair would fail over time is tantamount to a negligent or improper repair - there would be no need for the holdings in Yarborough and Oboler, since knowledge that a repair would wear and tear would, in and of itself, be evidence of negligent installation. This is of course, not the law.
Within her papers in support of her motion, plaintiff asserts a litany of arguments, which are completely irrelevant to her motion for summary judgment. Essentially, plaintiff takes issue with prevailing case law, which holds that certain documents do not constitute prior written notice to a municipality as a matter of law. She thus, also takes issue with the fact that defendants are ordered to search for and exchange these documents within this Court's preliminary conference order. While this Court can't be sure, it seems that plaintiff urges it to disregard controlling case law and in essence find that documents such as permits, constitute prior written notice to the defendants. This Court will do no such thing. Courts simply promulgate law based on precedent and in the case of prior written notice provisions, are, as aptly stated in Mollahan, reguired to read statutes as they are written (Mollahan at 884). If, as averred by plaintiff "the consequences seem unwise, unreasonable or undesirable, the argument for change is to be addressed to the Legislature, not to the courts" (id.).
Notwithstanding the foregoing, while it is true that case law holds that citizen complaints (Lopez v Gonzalez, 44 AD3d 1012, 1012 [2d Dept. 2007]), complaints to the City's 311 system (Kapilevich v City of New York, 103 AD3d 548, 549 [1st Dept 2013]), or telephonic complaints, even if reduced to writing do not provide prior written notice (Dalton v City of Saratoga Springs, 12 AD3d 899, 901 [3d Dept 2004]; Cenname v Town of Smithtown, 303 AD2d 351, 352 [2d Dept 2003]), this Court notes that such holdings are simply the result of the duty imposed upon courts to strictly interpret the language of the prior written notice provision, which in the case of§ 7-201(2) requires "written notice of the defective, unsafe, dangerous or obstructed condition. . . to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice (emphasis added)." Thus, if a written complaint is directed to anyone else, it, therefore, makes sense to find that the municipal defendant has not received prior written notice. Similarly, it is well settled that permits do not, as a matter of law, constitute prior written notice to the a municipality under § 7-201 (Levbarg v City of New York, 282 AD2d 239, 242 [1st Dept 2011]). This holding, of course, makes sense inasmuch as a permit is merely an application to do work and therefore cannot apprise a municipality of any defective condition.
As to why defendants are ordered to produce items, such as permits, within this Court's preliminary conference order when they do not provide prior written notice, the Court notes that often these items are helpful to plaintiffs in that they identify potential tortfeasors, thus, allowing them to be sued.
Plaintiff's motion to compel a further deposition, specifically, a deposition of the defendants' Commissioner of Transportation is hereby denied inasmuch as she fails to establish that the witnesses deposed were inadequate.
It is well settled that once a party has deposed a defendant's witness, depositions of additional witness employed by that defendant is only warranted when it is established that (1) the witness deposed had insufficient knowledge relative to the issues in the case or was otherwise inadequate; and (2) there is a substantial likelihood that the additional witness sought to be deposed possess information which is material and necessary to the prosecution of the case [Gomez v State of N.Y., 106 AD3d 870, 872 [2d Dept 2013] [Court ordered an additional deposition of defendant's employee insofar as the first witness produced by that defendant lacked insufficient knowledge of the relationship between the parties and thus could not testified regarding a primary issue in that action - supervision and control. Moreover, plaintiff established that additional witness, whose deposition was sought, would likely offer material and necessary evidence on that issue of supervision and control.]; Gelda v Costco Wholesale Corp., 89 AD3d 1058, 1058 [2d Dept 2011]; Nunez v Chase Manhattan Bank, 71 AD3d 967, 968 [2d Dept 2010] [Court ordered deposition of another of defendant's employees when the first witness produced had almost no knowledge of plaintiff's accident and the maintenance of the premises in which it occurred.]; Alexopoulos v Metropolitan Transportation Authority, 37 AD3d 232, 233 [1st Dept 2007] [Court ordered that defendant produce another of its employees for a deposition when the first witness produced had insufficient knowledge regarding guidelines which plaintiff alleged caused the accident and documents established that the additional witness, insofar as she approved those guidelines, had knowledge that was material and necessary to a salient issue in the case.]; Those Certain Underwriters at Lloyds, London v Occidental Gems, Inc., 41 AD3d 362, 364 [1st Dept 2007] [Court denied motion seeking to compel the defendant to produce an additional witness for a deposition when it was established that the witness sought would merely provide testimony duplicative to that about which the first witness testified.]).
Here, notwithstanding that plaintiff utterly fails to make any arguments in support of her application for an additional deposition within her moving papers, a review of the record evinces that the defendants produced, and plaintiff deposed three witnesses, two of whom fully testified to the issues relevant to plaintiff's cause of action. Specifically, the City produced Dimitry Surkov (Surkov) and Stacey Williams, employees with DOT, who testified about the search for records conducted by DOT and the results thereof. To the extent that plaintiff seeks a further deposition in order to verify that defendants do not comply with 7- 201(c)(3) and (4) in furtherance of her estoppel claim, defendants concede this point, and as discussed above such noncompliance does not give rise to estoppel. Accordingly, the deposition sought is irrelevant.
Defendants Cross-Motion for Summary Judgment
Defendants motion for summary judgment is granted insofar as they demonstrate, beyond, factual dispute, that they had no prior written notice of the defect alleged to have caused plaintiff's accident.
Pursuant to section 7-201(c)(2) of the New York City Administrative Code,
[n]o civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was writtenAccordingly, generally, a municipal defendant bears no liability under a defect falling within the ambit of section 7-201(c) "unless the injured party can demonstrate that a municipality failed or neglected to remedy a defect within a reasonable time after receipt of written notice" (Poirier v City of Schenectady, 85 NY2d 310, 313 [1995]). The exception to the foregoing is where it is claimed that the municipal defendant affirmatively created the condition alleged to have caused plaintiff's accident, in which case, the absence of prior written notice is no barrier to liability (Elstein v City of New York, 209 AD2d 186, 186-187 [1st Dept 1994]; Bisulco v City of New York, 186 A.D,2d 85, 85 [1st Dept 1992]). A plaintiff seeking to proceed on a theory that the municipality created the defect alleged, however, must establish that the defective condition was improperly installed so as to bring the defect out of the ambit of ordinary wear and tear (Yarborough at 728; Oboler at 890). Stated differently, the proponent of a claim that a municipal defendant created a dangerous condition must establish that work performed by the municipal defendant was negligently performed such that it "immediately result[ed] in the existence of [the] dangerous condition" alleged (Yarborough at 728 [internal quotation marks omitted]).
acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.
On a motion for summary judgment,
[w]here the City establishes that it lacked prior written notice under the Pothole Law, the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality(Yarborough at 726).
On September 14, 2003, with the passage of § 7-210 of the New York City Administrative Code, maintenance and repair of public sidewalks and any liability for a failure to perform the same, was shifted, with certain exceptions, to owners whose property abutted the sidewalk (Ortiz v City of New York, 67 AD3d 21, 25 [1st Dept 2009], revd on other grounds 14 NY3d 779 [2009]; Klotz v City of New York, 884 AD3d 392, 393 [1st Dept 2004]); Wu v Korea Shuttle Express Corporation, 23 AD3d 376, 377 [2d Dept 2005]). Despite the enactment of § 7-201, the City nevertheless remained responsible to maintain certain sidewalks such as those abutting "one-, two- or three-family residential real property that is (i) in whole or in part, owner occupied, and (ii) used exclusively for residential purposes" (New York City Administrative Code § 7-210[c]), and is liable for defects existing on the sidewalks abutting exempt properties or in cases where the City created the dangerous condition alleged, or enjoyed a special use of the area upon where the defect existed (Yarborough at 726). Additionally, the City remained liable to maintain the curbs abutting public sidewalks because the § 7-210 only shifted the responsibility of sidewalk maintenance to an abutting landowner, which is defined as "that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, but not including the curb, intended for the use of pedestrians" (New York City Administrative Code § 19-101(d); see also Ascencio v New York City Hous. Auth., 77 AD3d 592, 593 [1st Dept 2010] [Defendant, abutting property owner granted summary judgment in an action arising from an accident on a defective portion of the sidewalk when the evidence established that the accident occurred on the curb.]; Garris v City of New York, 65 AD3d 953, 953 [1st Dept 2009]).
Here, defendants' evidence, namely the affidavit from Omar Codling (Codling), an employee with DOT establishes that he performed a search of DOT's records, namely, permits, applications for permits, corrective action requests, notices of violation, inspections, maintenance and repair ordered, gang sheets for roadway defects, contracts, complaints, and Big Apple Maps, for the roadway located on Spencer Terrace, between Spencer Place and Dead End. The search included any records for a period of two years prior to and including the date of plaintiff's alleged accident.
The search yielded four maintenance and repair records, four gang sheets, and one Big Apple Map, which was served upon DOT on June 26, 2003. According to Surkov, gang sheets are created as a result of a repair order and list the repairs made, the members of the repair crew and their supervisor. Here, the repair orders and gang sheets unearthed by Codling evince that on September 27, 2006 DOT received a complaint of potholes on the roadway located on Spencer Terrace, specifically in front of 6209 Spencer Terrace. According to the repair order, DOT repaired the potholes on October 2, 2006. On November 6, 2011 and April 28, 2007, DOT received two complaints about a pothole in front of 6203A Spencer Terrace and repaired the same on November 8, 2006 and April 30, 2007, respectively. On May 20, 2008, DOT received a complaint of potholes in front of 6211 Spencer Terrace and repaired the same on May 27, 2008. The Big Apple Map unearthed by DOT's search evinces that the sidewalk between 6209 and 6211 Spencer Terrace was cracked.
Plaintiff's testimony at her 50-h hearing establishes that on September 18, 2008, she tripped and fell while traversing the roadway on Spencer Terrace. Plaintiff testified that there were no sidewalks on Spencer Terrace and that at some point, her foot became lodged in a hole causing her to fall.
Based on the foregoing, defendants establish prima facie entitlement to summary judgment insofar as the evidence establishes that at all times prior to plaintiff's fall, when DOT received written notice of potholes at or about the location of plaintiff's accident - which as per the notice of claim is between 6209 and 6211 Spencer Terrace, it repaired them. Accordingly, while defendants did have prior written notice of the potholes alleged to have caused plaintiff's fall, the subsequent repairs after such notice and the absence of prior written notice thereafter and prior to plaintiff's accident warrants summary judgment in defendants' favor (Lopez v Gonzalez, 44 AD3d 1012, 1012-1013 [Municipal defendant granted summary judgment because, inter alia, while it had prior written notice of the condition alleged, it had repaired it and no further written notice existed at least 15 days prior to plaintiff's accident]).
For this very reason, while the Big Apple can establish prior written notice upon the defendants of a defective condition (Katz v City of New York, 87 NY2d 241, 243 [1995] ["Maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. and filed with the Department of Transportation serve as prior written notice of defective conditions depicted thereon."]; Chia v City of New York, 109 AD3d 865, 866 [2d Dept 2013]), the map here was served on defendants in 2003 and as discussed above any potholes listed therein were subsequently repaired.
Plaintiff's opposition fails to raise any triable issues of fact on the issue of prior written notice and thus, defendants' motion must be granted. The only colorable argument asserted by plaintiff is that defendants caused and created the defective condition alleged. However, in opposition to defendants' motion, plaintiff tenders the same evidence discussed above, which she tendered in support of her motion, again asserting that the it establishes that defendants caused and created the condition. As noted above that evidence does not establish that defendants caused or created the condition alleged. Beyond that, plaintiff unconvincingly argues, inter alia, that summary judgment ought to be denied because one of defendants' searches for documents produced no records. While this is indeed a discrepancy, a negative search, as opposed to one which reveals evidence of prior written notice, is insufficient to preclude summary judgment because it is well settled that mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to warrant or defeat summary judgement (Zuckerman at 562). It is hereby
ORDERED that the complaint against defendants be dismissed, with prejudice. It is further
ORDERED that the defendants serve a copy of this Decision and Order with Notice of Entry upon plaintiff within thirty (30) days hereof. Dated : April 29, 2014
Bronx, New York
__________
Mitchell J. Danziger, ASCJ