Ocasio v. City of New York

28 A.D.3d 311, 813 N.Y.S.2d 408

Opinion

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered October 28, 2004, which, to the extent appealed from, following a jury verdict awarding plaintiff $665,000, denied defendant’s motion to set aside the verdict, unanimously reversed, on the law, without costs, the motion granted, the judgment vacated and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The facts of this case are analogous to those in our recent decision in Bielecki v City of New York (14 AD3d 301 [2005]). In Bielecki, we affirmed the trial court in granting the City’s motion to set aside the verdict and dismiss the complaint where the plaintiff failed to show that the City had prior written notice (Administrative Code of City of NY § 7-201 [c] [2]) of the hole in a pedestrian walkway that he stepped into, causing his injuries. Similarly here, the record evidence shows that the City did not receive such notice of the pothole that caused plaintiffs injury and that the pothole’s recurrence, approximately two years after repair by the City, was not the result of an affirmative act of negligence by the City (cf. Kiernan v Thompson, 73 NY2d 840 [1988]). Concur—Mazzarelli, J.P., Saxe, Sullivan, Nardelli and Williams, JJ.