Sandler v. New York City Transit Authority

188 A.D.2d 335

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 1992
• Status: Published

Opinion

Order, Supreme Court, New York County (Eugene L. Nardelli, J.), entered on or about September 9, 1991, granting the defendant City of New York’s motion pursuant to CPLR 3211 (a) (7) to dismiss this personal injury complaint and all cross-claims against the City of New York, unanimously affirmed, without costs.

It is alleged that the plaintiff stepped into a pothole as she alighted from a bus on East 14th Street. Two days later, she returned to the site to take pictures of the pothole to find that it had been repaired in the interim.

Administrative Code of the City of New York § 7-201 requires that the claimant plead and prove that the City received written notice of the street defect before the accident occurred. While this was not done, and there seems to be no record of such notice, the plaintiff claims that for the defect to have been repaired within two days, there must have been such notice.

Prior written notice is a condition precedent and the plaintiff has not met the burden of pleading and proving it (see, Cipriano v City of New York, 96 AD2d 817). Concur — Sullivan, J. P., Wallach, Kupferman and Kassal, JJ.