Santana v City of New York

Santana v City of New York 2008 NY Slip Op 08536 [56 AD3d 295] November 13, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 7, 2009

Sandy Santana, Respondent,
v
City of New York, Appellant.

—[*1] Michael A. Cardozo, Corporation Counsel, New York (Francis F. Caputo of counsel), for appellant.

The Pagan Law Firm, P.C., New York (Tania M. Pagan of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Stanley Green, J.), entered on or about January 16, 2007, upon a jury verdict finding defendant 100% liable for plaintiff's injuries, unanimously affirmed, without costs.

Plaintiff was injured when his bicycle struck a 3½-inch-high metal bollard sleeve protruding from a municipal park pathway without the 40-inch-high bollard pole positioned in the sleeve. Contrary to defendant's contention, its motion to dismiss at trial was properly denied, because although defendant did not have prior written notice of the defective condition (see Administrative Code of City of NY § 7-201 [c] [2]), the evidence established that the recognized exception to the prior written notice requirement applied, namely that defendant acted negligently when it affirmatively created the dangerous condition (see Yarborough v City of New York, 10 NY3d 726, 728 [2008]; Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]). Defendant had a duty to maintain the bollard pole and sleeve in a reasonably safe condition (see Posner v New York City Tr. Auth., 27 AD3d 542 [2006]), and the evidence showed that the missing bollard pole was regularly removed by defendant's employees to allow for maintenance vehicles to access areas of the park normally blocked by the bollards. Concur—Tom, J.P., Mazzarelli, Saxe, Nardelli and Buckley, JJ.