Hanley v. City of New YorkHanley v. City of New York
Ordered that the order is affirmed insofar as appealed from, with costs.
This action arises from a motor vehicle accident that occurred on January 21, 2003, on Rockland Avenue in Staten
In April 2004, the plaintiff commenced this action against the City of New York to recover damages for her personal injuries. The complaint alleged, among other things, that the City was negligent, inter alia, in failing to design and/or maintain the roadway in a reasonably safe condition. After discovery, the City moved for summary judgment dismissing the complaint, arguing that it did not have prior written notice of the alleged roadway defect, that it was entitled to qualified immunity for its highway planning decisions, and that the roadway as constructed was reasonably safe. The plaintiff opposed the City’s motion, and also cross-moved for summary judgment on thе issue of liability. The Supreme Court granted the City’s motion for summary judgment dismissing the complaint and denied the plaintiff’s cross motion. Thе plaintiff appeals from so much of the order as granted the City’s motion for summary judgment.
Where a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries arising from a defective roadway unless it has received written notice of the defect, or an exception to the written notice requirement applies (see Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Bartels v City of New York, 125 AD3d 583, 585 [2015]). The only recognized exceptions to the prior written notice requirement are where the defect or hazard results from an “affirmative act of negligence” by the municipality, or a special use by the municiрality that conferred a special benefit upon it (Methal v City of New York, 116 AD3d 743, 743 [2014]; see Carlucci v Village of Scarsdale, 104 AD3d 797, 798 [2013]). The affirmative negligence exception is limited to acts by the
Here, the City established its prima facie entitlemеnt to judgment as a matter of law by providing evidence that it did not have prior written notice of the alleged defective condition as required by
In opposition, the plaintiff failed to raise а triable issue of fact. In essence, the plaintiff argued, through the combined opinions of an accident reconstruction expert and a professional engineer, that the City had created a dangerous and defective сondition. Specifically, the accident reconstruction expert stated, based on photographs, that thе City had intentionally constructed a drainage rut alongside the roadway. The professional engineer described the presence of a seven-inch drop off beyond the pavement and a narrowing of the roadway at the аccident site. The affidavits of both experts were speculative and conclusory. The accident reconstruction expert provided no evidence that the City had undertaken any drainage-related activity at the aсcident scene during the nine years since the road had last been repaved that would have placed the City on immediate notice of any dangerous condition. Similarly, the plaintiff’s professional engineer provided no evidence of how the roadway edge had been beveled in relation to the adjoining ground at the time it had last been paved or at any time thereafter as to place the City on immediate notice that the beveling was dangerоus or improper. Moreover, neither expert identified any specific binding industry standard, code, rule, or regulation аllegedly violated by the City in the construction or maintenance of the roadway’s drainage, beveling, or width (see Chunhye Kang-Kim v City of New York, 29 AD3d 57, 61 [2006]). Further, neither expert explained how the
In light of our determination, the parties’ remaining contentions need not be addressed.
Accordingly, the Supreme Court properly granted the City’s motion for summary judgment dismissing the complaint.
Dillon, J.P., Austin, Miller and LaSalle, JJ., concur.