Opinion
13304/02.
Decided December 23, 2009.
Upon the foregoing papers, the motion for summary judgment by the City of New York (hereinafter "the City") is granted and the complaint as against it is dismissed.
To the extent relevant, on or about July 28, 2001, plaintiff Richard Kempton (hereinafter "plaintiff") alleges that he was caused to trip and fall in the roadway in front of premises known as 47 Pine Terrace between Amboy Road and Annadale Road in Staten Island ( see Plaintiffs' Bill of Particulars). At the time of the alleged accident, plaintiff was attending a block party and participating in a relay race on the street (Plaintiff's 50-h transcript, p 7). While running, plaintiff alleged that his left "foot went into the hole" and he was caused to trip and fall forward ( id. at 9-10, 13-14). Submitted to the Court are copies of photographs which, plaintiff confirmed, fairly and accurately depict the alleged condition that caused his fall (Defendant's Exhibit "D", Plaintiff's Exhibit" 8"). As a result of said incident, plaintiff claims to have sustained various personal injuries, including a fracture to his right wrist ( see Plaintiffs' Bill of Particulars). Plaintiffs subsequently commenced this action against the City of New York (hereinafter the "City"). Plaintiff Michelle Kempton alleges a derivative claim.
Co-defendant Aquifier Drilling Testing, Inc. has not appeared in this action.
In moving for summary judgment and for dismissal of the complaint as against it, the City submits the deposition transcript and affidavit of a Records Searcher on behalf of the City's Department of Transportation (EBT of Cynthia Howard, Affidavit of Cynthia Howard (Defendant's Exhibits "E", "G"). According to her, a search of Big Apple Map and highway records for the subject period and location disclosed two permits and three repair orders (Defendant's Exhibits "F", "G"), each of which were referenced at the City's subsequent depositions. In this regard, the City additionally submits the deposition transcripts of two Highway Repairers (EBT of Michael Ricciardi and EBT of John Grieci) and an Area Supervisor (EBT of Robert Hanson) on behalf of its Department of Transportation (hereinafter "DOT"). At his deposition, the Area Supervisor testified that an "A type pothole" in front of 46 Pine Terrace was last repaired on September 23, 1999, approximately two years prior to plaintiff's accident, as per the repair order containing defect number "DS199267005" (EBT of Robert Hanson, pp 60-62, 78, 81-82). No subsequent complaints were noted.
The repair order for defect number "DS199267005" is annexed to defendant's motion as Exhibit "E", and plaintiffs' opposition as Exhibit "1".
The City maintains that (1) plaintiffs failed to prove compliance with the prior written notice requirement in accordance with section 7-201(c) of the Administrative Code of the City of New York, and (2) they have similarly failed to demonstrate that the alleged defect was caused and/or created by any affirmative negligence on the part of the City.
The City also makes an alternative argument that the plaintiff assumed the risk of injury. Were the Court were to address this issue, it appears that plaintiff cannot be said to have assumed the risk of being injured by a defective condition of a pothole on a public street merely because he was participating in a recreational activity ( Caraballo v. City of Yonkers , 54 AD3d 796 [2nd Dept 2008]; see Phillips v. County of Nassau , 50 AD3d 755 , 757 [2nd Dept 2008]).
In opposition, plaintiffs submit an expert affidavit by a professional engineer, Anthony Cosentino (Plaintiff's Exhibit "9"). Based on his review of the deposition transcripts, the photographs of the alleged defect, and the work orders and repair orders in question, plaintiff's expert opines that repair work was never done on the subject pothole and that it remained in that condition at the time of plaintiff's accident ( id.). In addition, based on the repair order containing defect number "DS199267005", plaintiffs assert that the City had notice of the subject defect on September 9, 1999.
Administrative Code § 7-201(c) limits the City's duty of care over, e.g., municipal streets, by imposing liability only for such defects or hazardous conditions that its officials have been actually notified exist at a specified location ( see Katz v. City of New York, 87 NY2d 241, 243). Since the Administrative Code does not attempt to define the specificity of the required notice, the courts have held that a notice is sufficient if it brings the particular condition at issue to the attention of the relevant authorities ( see Patane v. City of New York, 284 AD2d 513, 514 [2nd Dept 2001]). Moreover, it is well established that prior written notice of a given defect is a condition precedent to the maintenance of a tort action against the City ( see Cassuto v. City of New York , 23 AD3d 423 [2nd Dept 2005], citing Katz v. City of New York, 87 NY2d at 243). It is equally well settled that defects noted on the maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. and filed with the City's Department of Transportation are universally recognized as satisfying this prior written notice requirement ( id.).
Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained roadway unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies ( see Diaz v. City of New York , 56 AD3d 599 [2nd Dept 2008]; Marshall v. City of New York , 52 AD3d 586 [2nd Dept 2008]). The prior written notice requirement will be obviated only where plaintiff establishes that a special use at the subject location resulted in a special benefit to the locality, or that the municipality affirmatively created the defect by performing work that immediately resulted in the existence of a dangerous condition ( see Schleif v. City of New York , 60 AD3d 926 [2nd Dept 2009]; Diaz v. City of New York, 56 AD3d at 600; Marshall v. City of New York, 52 AD3d at 586) . The affirmative negligence exception is limited to work by the defendant that immediately results in the existence of a dangerous condition ( see Yarborough v. City of New York , 10 NY3d 726 , 728; Schleif v. City of New York, 60 AD3d at 928; Diaz v. City of New York, 56 AD3d at 600). Thus, even if it can be established that a municipality performed an improper pothole repair, where the defect of which plaintiff complains develops over time as a result of environmental wear and tear, the affirmative negligence exception is inapplicable ( see Schleif v. City of New York, 60 AD3d at 928; Diaz v. City of New York, 56 AD3d at 601).
Contrary to plaintiffs' contention, repair orders or reports, reflecting only that pothole repairs had been made to the subject area more than a year before the accident are insufficient to constitute prior written notice of the defect that allegedly caused the plaintiff's injuries ( see Marshall v. City of New York, 52 AD3d at 587; Khemraj v. City of New York , 37 AD3d 419 ). In opposition to the City's prima facie showing that it did not receive prior written notice, plaintiffs failed to raise a triable issue of fact ( see Marshall v. City of New York , 52 AD3d 586 at 587; Khemraj v. City of New York , 37 AD3d 419 at 420). Moreover, the expert affidavit of the plaintiff's engineer was of little evidentiary value, as it was both speculative and conclusory in nature ( see Khemraj v. City of New York , 37 AD3d 419 at 420).
Accordingly, it is
ORDERED that the motion for summary judgment by the City of New York is granted; and it is further
ORDERED that the complaint as to the above-named defendant is severed and dismissed; and it is further
ORDERED that the Clerk enter judgment and mark his records accordingly.