Campisi v. Bronx Water & Sewer Service, Inc.

1 A.D.3d 166, 766 N.Y.S.2d 560, 2003 N.Y. App. Div. LEXIS 11811

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2003
• Status: Published

Opinion

Order, Supreme Court, New York County (Michael Stallman, J.), entered April 9, 2003, which, inter alia, granted the motion of the City of New York (City) for summary judgment dismissing the cross claims asserted against it, unanimously affirmed, without costs.

In this pothole-related accident case, the court properly granted the City’s motion for summary judgment dismissing the cross claims against it. Pursuant to Administrative Code of the City of New York § 7-201 (c) (2), prior written notice is a condition precedent to maintaining an action against the City arising from a street defect. The City properly established, through an affidavit from an appropriate official, that a search of the Department of Transportation’s records was conducted and that there was no prior written notice of the defective condition (see Cruz v City of New York, 218 AD2d 546, 547 [1995]).

There is no evidence that the City created the defective condition. Accordingly, that exception to the requirement of prior written notice does not apply. Neither actual nor constructive notice of the defect may substitute for prior written notice (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; see also Cenname v Town of Smithtown, 303 AD2d 351 [2003]).

We have considered appellants’ remaining contentions and find them unavailing. Concur—Tom, J.P., Saxe, Rosenberger, Williams and Gonzalez, JJ.