Worthman v City of New York

Worthman v City of New York 2017 NY Slip Op 04062 Decided on May 23, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 23, 2017
Acosta, P.J., Renwick, Mazzarelli, Andrias, Manzanet-Daniels, JJ.
4093 109419/06

[*1]Diana Worthman, Plaintiff-Appellant,

v

The City of New York, Defendant-Respondent.

Marder, Eskesen & Nass, New York (Clifford D. Gabel of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered August 4, 2015, which granted defendant City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The City made a prima facie showing that it did not have prior written notice of the defective roadway condition that allegedly caused plaintiff to trip and fall (see Administrative Code of City of NY § 7-201[c][2]; Yarborough v City of New York, 10 NY3d 726, 728 [2008]). Although some of the documents submitted by the City in support of its motion showed the existence of potholes and defects at the accident site during the two years leading up to the accident, there was no proof that any of these defects — all of which were repaired — were the cause of the accident. In any event, "[t]he awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident" (Roldan v City of New York, 36 AD3d 484, 484 [1st Dept 2007]). Moreover, "the City's records of citizen reports of. . .potholes in the area and FITS reports of repairs made to potholes. . .did not provide the City with prior written notice of the particular defect in the crosswalk where plaintiff fell" (Stoller v City of New York, 126 AD3d 452, 452 [1st Dept 2015]; see Haulsey v City of New York, 123 AD3d 606 [1st Dept 2014]).

In opposition, plaintiff failed to raise an issue of fact. There was no proof that the defect reported in a prior notice of claim was the same defect that ultimately caused plaintiff's injury. Furthermore, plaintiff's claim that the City's negligent repair of the accident site created the defect did not raise an issue of fact because there was no evidence that the allegedly negligent repair immediately caused the defect, and plaintiff's

claim to the contrary was entirely speculative (see Ragolia v City of New York, 143 AD3d 596, 597 [1st Dept 2016]; Ghin v City of New York, 76 AD3d 409, 410 [1st Dept 2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 23, 2017

CLERK