In roadway defect cases, a condition precedent to maintaining an action against the City of New York is proof that the City had prior written notice of the defect.  One of the exceptions to the notice requirement is where the defect results from an “affirmative act of negligence” by the City.

In Rodriguez v. City of New York, the plaintiff sued the City of New York alleging that she was injured when she fell over a portion of raised asphalt at a bus station.  The City successfully moved for summary judgment on the grounds that it did not have prior written notice of any defect and that it did not cause or create the defect.   Plaintiff’s opposition had argued that prior written notice was not required since the City negligently designed the roadway by failing to construct a bus pad that would have prevented the defect from forming.

On appeal, the Second Department determined that the City’s failure to construct the concrete bus pad, which allegedly allowed the formation of the defect, did not rise to the level of an affirmative act of negligence.  As such, plaintiff could not avail herself of the exception to the notice requirement, and the lower court’s decision was affirmed.

The take-away is that the failure to act is not an affirmative act that absolves a plaintiff from the mandate of written notice to the City.

Thanks to Sheree Fitzgerald for her contribution.

For more information, contact Denise Fontana Ricci at .