Miller v. City of New York

Appellate Division of the Supreme Court of New York

Miller v. City of New York

225 A.D.2d 396, 640 N.Y.2d 11, 640 N.Y.S.2d 11, 1996 N.Y. App. Div. LEXIS 2734

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 19, 1996

StatusPublished

Cited by1 cases

This text of 225 A.D.2d 396 (Miller v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. City of New York, 225 A.D.2d 396, 640 N.Y.2d 11, 640 N.Y.S.2d 11, 1996 N.Y. App. Div. LEXIS 2734 (N.Y. Ct. App. 1996).

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Opinion

The IAS Court properly denied the City’s motion to dismiss the complaint on the grounds that the City had not been given prior written notice of the alleged highway defect pursuant to Administrative Code of City of New York § 7-201 (c) (2). Such notice is not required where it is shown that the municipality was affirmatively negligent in causing or creating the defective condition (see, Messina v City of New York, 190 AD2d 659). Here, sufficient evidence was adduced at trial to support a finding that the City negligently left in place an inadequately secured guard rail section adjacent to the sign post into which plaintiff’s decedent’s car crashed (cf., supra). Plaintiff’s engineering and highway expert concluded that, based on photo exhibits, the guard rail section had not been equipped with the number of bolts required to secure an extended line of railing. Moreover, "work order” documents indicated that repair work had been done by the City on the Gowanus Expressway guard rail near 38th and 39th Streets, where the accident later occurred.

We have considered the parties’ remaining arguments for affirmative relief and find them to be without merit. Concur— Murphy, P. J., Rosenberger, Ross and Mazzarelli, JJ.

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The IAS Court properly denied the City’s motion to dismiss the complaint on the grounds that the City had not been given prior written notice of the alleged highway defect pursuant to Administrative Code of City of New York § 7-201 (c) (2). Such notice is not required where it is shown that the municipality was affirmatively negligent in causing or creating the defective condition (see, Messina v City of New York, 190 AD2d 659). Here, sufficient evidence was adduced at trial to support a finding that the City negligently left in place an inadequately secured guard rail section adjacent to the sign post into which plaintiff’s decedent’s car crashed (cf., supra). Plaintiff’s engineering and highway expert concluded that, based on photo exhibits, the guard rail section had not been equipped with the number of bolts required to secure an extended line of railing. Moreover, "work order” documents indicated that repair work had been done by the City on the Gowanus Expressway guard rail near 38th and 39th Streets, where the accident later occurred.

We have considered the parties’ remaining arguments for affirmative relief and find them to be without merit. Concur— Murphy, P. J., Rosenberger, Ross and Mazzarelli, JJ.

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Bluebook (online)

225 A.D.2d 396, 640 N.Y.2d 11, 640 N.Y.S.2d 11, 1996 N.Y. App. Div. LEXIS 2734, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-city-of-new-york-nyappdiv-1996.

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