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NY’s “Pothole Law,” Prior Written Notice Statutes, and the Affirmative Negligence Exception (NY)

December 23, 2020

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<p style="text-align: justify;">In <em>Martin v. City of New York</em>, No. 12318, 2020 WL 7347089 (1st Dep’t, Dec. 15, 2020), the Appellate Division, First Department clarified a municipality’s liability exposure, pursuant to a prior written notice statute and the affirmative negligence exception.</p>
<p style="text-align: justify;">In <em>Martin</em>, Plaintiff alleged he sustained personal injuries when falling on a roadway in the Bronx. Defendant owned and maintained the accident location. Defendant moved for summary judgment, which was granted, because Plaintiff failed to provide Defendant with prior written notice of the alleged roadway defect, as required under the “Pothole Law.” <em>See</em> Administrative Code of City of NY § 7-201 (c)(2). On appeal, Plaintiff argued notice was not required under the Pothole Law when the alleged tortfeasor created the roadway defect through an affirmative act of negligence, i.e., poorly conducted repair work. The First Department agreed with Plaintiff and reversed the trial court’s summary judgment order, for the reasons articulated below.</p>
<p style="text-align: justify;">Generally, a municipality that has enacted a prior written notice statute may not be subject to liability for personal injuries caused by a defective street or sidewalk condition, absent proof of prior written notice or an exception thereto. <em>Martin</em>, at *1. The Court of Appeals has recognized two exceptions to this rule, namely, where the locality created the defect or hazard through an affirmative act of negligence [and] where a “special use” confers a special benefit upon the locality. <em>Katasoudas v. City of New York</em>, 29 A.D.3d 740, 741 (2d Dep’t 2006) (additional citations omitted).</p>
<p style="text-align: justify;">In <em>Martin</em>, the “affirmative creation exception” was at issue. This exception is “limited to work by the City that immediately results in the existence of a dangerous condition.” <em>Yarborough v. City of New York</em>, 10 N.Y.3d 726, 728 (2008) (internal quotation marks and additional citations omitted). The exception does not apply in circumstances where a dangerous condition eventually emerges, due to erosion/gradual wear and tear. In <em>Martin</em>, however, the First Department noted the trial court erred by ignoring deposition testimony demonstrating Defendant attempted to repair the subject road approximately one month before the accident occurred. Thus, questions of fact existed as to whether Defendant’s affirmative repair of the road negligently created a defective condition.</p>
<p style="text-align: justify;">The takeaway for defense counsel is that they should be aware of the evidentiary burden required to prevail on summary judgment when plaintiffs proffer testimony supporting the affirmative negligence exception of a prior written notice statute. Rebutting such a proffer would require countervailing evidence that plaintiff’s testimony is either entirely unsubstantiated or the dangerous condition developed over time.</p>
<p style="text-align: justify;">Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact <a href="">Colleen Hayes</a>.</p>


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