Cardona v. City of New York

305 A.D.2d 303, 759 N.Y.S.2d 323, 2003 N.Y. App. Div. LEXIS 5915

Opinion

Order, Supreme Court, Bronx County (Alan Saks, J.), entered on or about December 5, 2001, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In light of defendant City’s showing that it was not notified of the complained-of street defect pursuant to Administrative Code of the City of New York § 7-201 (c) (2), the burden shifted to plaintiffs to raise a triable issue as to whether defendant affirmatively caused or created the defect (see Bruni v City of New York, 302 AD2d 545, 546 [2003]; Cuffey v City of New York, 255 AD2d 203 [1998]). Even if it is assumed that defendant dug the trench from which certain pavement cracks seem to originate, plaintiffs’ proof does not permit a reasonably reliable inference that the defect was a consequence of defendant’s allegedly negligent work (see Carbo v City of New York, 275 AD2d 439 [2000]), rather than “normal” pavement deterioration over time (see Zizzo v City of New York, 176 AD2d 722, 723 [1991]). Concur — Buckley, P.J., Tom, Ellerin, Lerner and Friedman, JJ.