Opinion
No. 14.
Decided June 6, 2006.
Appeal from the APPEAL from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered March 9, 2006. The Appellate Division, with two Justices dissenting, affirmed a judgment of the Supreme Court, Albany County (Louis C. Benza, J.), which had granted defendant's motion for a directed verdict dismissing plaintiffs' complaint.
Plaintiff sustained injuries when he struck a pothole in the street while riding his bicycle. Supreme Court dismissed the complaint based on plaintiffs failure to comply with defendant City's prior written notice requirement.
The Appellate Division concluded that defendant's ineffectual pothole repair job, which did not make the condition any worse, did not constitute an affirmative act of negligence precluding defendant from relying on its prior notice law.
Kushner v. City of Albany, 27 AD3d 851, affirmed.
Rothschild Law Firm, P.C., Syracuse ( Martin J. Rothschild of counsel), for appellants.
Napierski, Vandenburgh Napierski, L.L.P., Albany ( Eugene Daniel Napierski of counsel), for respondent.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs.
The Appellate Division properly determined that plaintiffs failed to raise a triable issue of fact sufficient to withstand a motion for a directed verdict on the question of whether plaintif's alleged injuries resulted from an affirmative act of negligence that would preclude defendant City of Albany from relying on its prior written notice law (see Amabile v. City of Buffalo, 93 NY2d 471, 473-474).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.