Opinion
111185/08.
July 26, 2010.
Sameer Chopra, Esq., Dinkes Schwitzer, New York, NY, for plaintiff.
Andrew Lucas, ACC, Michael A. Cardozo, Corporation Counsel, New York, NY, for defendants.
By notice of motion dated February 26, 2010, defendants City of New York and The New York City Department of Parks and Recreation of the City of New York (collectively, City) move pursuant to CPLR 3211(a)(7) and 3212 for an order summarily dismissing the complaint against them. Plaintiff opposes the motion.
I. BACKGROUND
On or about July 14, 1999, Robert Mendoza served City with a notice of claim, alleging that on June 18, 1999, he was injured when "caused to fall from his bicycle when it struck a section of cracked, broken and dilapidated asphalt forming a long depression" at the Watson Gleason Playground in the Bronx, near a sewer drain near the middle of the playground. (Affirmation of Andrew Lucas, Esq., dated Feb. 26, 2010 [Lucas Aff], Exh. A). Photographs annexed to the notice of claim depict a long crack in the asphalt adjacent to a sewer drain. ( Id.).
On June 29, 2000, Mendoza testified at a 50-h hearing that he was riding his bicycle in the middle of the playground when something jammed his front wheel, causing him to fall to the ground, that he saw the crack in the asphalt after he fell, and that he had seen cracks in the asphalt in the playground over a period of at least two years before his accident. ( Id., Exh. B).
On or about August 4, 2000, Mendoza served a summons and complaint on defendants ( id., Exh. C), and on or about August 17, 2000, City served its answer ( id., Exh. E). Sometime between 2005 and 2008, Mendoza died. ( Id.). By decision and order dated May 22, 2008, plaintiff Lucia Posas was substituted as the party-plaintiff for Mendoza.
II. CONTENTIONS
City denies any prior written notice of the allegedly defective asphalt at the playground or having caused or created the defect, relying on a fruitless search of records of any complaints, maintenance, repairs, or accidents relating to the playground from two years prior to and including the date of the accident. (Lucas Aff., Exhs. I, J).
Plaintiff argues that City has not met its burden of establishing entitlement to summary dismissal as it merely points to gaps in plaintiff's proof, that City has not proved an absence of notice, and that City should have been aware of the defect as it is responsible for maintaining the playground and given plaintiff's testimony that the defect had existed for a long time. She contends that City failed to inspect and maintain the asphalt properly, and that if it had, it would have noticed the crack, which looks as if it had been there for a long period of time. (Affirmation of Sameer Chopra, Esq., dated May 20, 2010, Exh. B).
In reply, City argues that even if it had performed any work at the site, plaintiff has failed to show that the crack was immediately apparent thereafter. (Reply Affirmation of Andrew Lucas, ACC, dated June 4, 2010). And, since discovery is complete, City maintains that plaintiff cannot and has not produced any evidence showing that City had notice of the crack or caused or created it.
III. ANALYSIS
Pursuant to New York City Administrative Code § 7-201(c)(2) (the Pothole Law):
No civil action shall be maintained against the city for . . . injury to person . . . sustained in consequence of any street . . . sidewalk or crosswalk, or any part or portion of any of the foregoing . . . 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 written acknowledgment of from the city of the defective, unsafe, 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 reasonable safe.
"[P]rior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City." ( Katz v City of New York, 87 NY2d 241, 243). "Where 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 v City of New York, 10 NY3d 726, 728). The affirmative act exception applies only to work done by City which "immediately results in the existence of a dangerous condition." ( Id.).
Here, City has established, prima facie, an absence of any prior written notice of the crack in the playground's asphalt, having shown that it searched for and located no records relating to any defective condition at the playground for two years before Mendoza's accident. Having failed to argue otherwise, plaintiff has, in effect, conceded the absence of prior written notice of the crack. Nor did plaintiff argue that City made a special use of the asphalt or playground.
Plaintiff also offered no evidence, expert or otherwise, that City performed any work on the asphalt or that any work immediately produced the crack. ( See eg Oboler v City of New York, 8 NY3d 888 [plaintiff produced no evidence showing who repaved roadway before accident, when any repaving may have been done, or condition of asphalt immediately after any repaving]).
Even if City had breached its duty to maintain the playground in a safe condition, it cannot be held liable for plaintiffs injuries absent prior written notice. ( See eg Boice v City of Kingston, 60 AD3d 1140 [3d Dept 2009] [failure to repave entire roadway amounted to nonfeasance rather than affirmative negligence]; Farrell v City of New York, 49 AD3d 806 [2d Dept 2008] [mere failure to maintain or repair roadway not affirmative act of negligence]; Ferreira v County of Orange, 34 AD3d 724 [2d Dept 2006] [defendant's alleged failure to maintain and repair allegedly defective guardrail did not constitute affirmative act of negligence]; Silva v City of New York, 17 AD3d 566 [2d Dept 2005], lv denied 5 NY3d 705 [failure to repair is not affirmative act sufficient to hold City liable absent prior written notice]; Kelly by Kelly v City of New York, 172 AD2d 350 [1st Dept 1991] [City not liable for failure to maintain or repair roadway absent notice]). Nor can constructive notice serve as a basis for liability. ( Amabile v City of Buffalo, 93 NY2d 471 [constructive notice of defect does not satisfy statutory requirement of prior written notice]; Silva, 17 AD3d at 567 [same]; Campisi v Bronx Water Sewer Svce., Inc., 1 AD3d 166 [1st Dept 2003] [same]).
Plaintiff has thus failed to establish the existence of any triable issues of fact.
IV. CONCLUSION
Accordingly, it is hereby
ORDERED, that defendants City of New York and The New York City Department of Parks and Recreation of the City of New York's motion for an order granting them summary judgment is granted, and the complaint is dismissed against defendants with costs and disbursements to defendants as taxed by the clerk of the court upon the submission of an appropriate bill of costs, and it is further
ORDERED, that the clerk of the court is directed to enter judgment accordingly.