Torres v City of New York

Torres v City of New York 2007 NY Slip Op 03752 [39 AD3d 438] April 26, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 6, 2007

Ruben Torres, as Administrator of the Estate of Carlos Torres, Deceased, Respondent,
v
City of New York et al., Appellants.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (John Hogrogian of counsel), for appellants.

Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered on or about October 11, 2005, which, upon renewal, denied defendants' motion for judgment notwithstanding the verdict, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter an amended judgment in favor of defendants dismissing the complaint.

Although we previously reinstated the liability verdict against defendants (306 AD2d 191 [2003]), rejecting defendants' contention that the action should have been dismissed on the ground that the City had no prior written notice of the alleged roadway defect (see Administrative Code of City of NY § 7-201 [c] [2]), we have since had occasion to reexamine our holding on the previous appeal—that prior notice of a roadway defect is not a necessary precondition of municipal liability attributable to such a defect where the defect results from the City's affirmative negligence, even where the defect is not immediately apparent but develops over an extended period—and in Bielecki v City of New York (14 AD3d 301 [2005]) explicitly overruled that holding, concluding instead that prior notice pursuant to Administrative Code § 7-201 (c) (2) is necessary where the alleged defect is not immediately apparent at the conclusion of the City's roadway work, but develops subsequently. In view of Bielecki, defendants' motion for judgment notwithstanding the verdict, appropriately renewed prior to the trial on the issue of damages directed in our prior order, should now be granted. There is no ground to distinguish this case from Bielecki. Indeed, according to plaintiff's expert, the complained-of roadway depressions, although traceable to the City's negligence in repairing the roadway, did not appear immediately, but developed gradually as inadequately paved cobblestones became exposed, loose and displaced (see 306 AD2d at 192). Concur—Mazzarelli, J.P., Saxe, Sullivan, McGuire and Kavanagh, JJ.