Yarborough v. City of New York

• Decision Date: 07 February 2008
• Docket Number: 3.
• Citation: Yarborough v. City of New York, 10 NY3d 726, 882 N.E.2d 873, 853 N.Y.S.2d 261 (N.Y. 2008)
• Parties: Kashawn YARBOROUGH, Appellant, v. CITY OF NEW YORK, Respondent, et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

882 N.E.2d 873

10 N.Y.3d 726

853 N.Y.S.2d 261

Kashawn YARBOROUGH, Appellant, v. CITY OF NEW YORK, Respondent, et al., Defendant.

3.

Court of Appeals of New York.

February 7, 2008.

Pollack, Pollack, Isaac & De Cicco, New York City (Brian J. Isaac of counsel), and Gary B. Pillersdorf and Associates, PC., for appellant.

Michael A. Cardozo, Corporation Counsel, New York City (Fay Ng, Pamela Seider Dolgow and John Hogrogrian of counsel), for respondent.

OPINION OF THE COURT MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

The unfortunate accident in this case occurred when plaintiff Kashawn Yarborough tripped and fell in a pothole on a Brooklyn street. Plaintiff commenced this action against defendant City of New York to recover damages for his serious injuries. Following discovery, the City moved for summary judgment dismissing the complaint, asserting that it did not have prior written notice of the hazard as required by the Pothole Law (Administrative Code of City of N.Y. § 7-201[c][2]). In support of its motion, the City submitted the deposition testimony of a City Department of Transportation employee who testified that no complaints or maintenance and repair records existed for the subject location for two years prior to and one year subsequent to the date of the incident. The City also proffered an affidavit from a City Department of Environmental Protection employee stating that no complaints or records existed for this location during the same time period.

In opposition, plaintiff conceded that the City lacked prior written notice of the pothole, but asserted that such notice was unnecessary because the City affirmatively created the defective condition. Based upon an examination of photographs taken shortly after the accident, one of plaintiff's expert engineers opined that patching repairs to the roadway prior to the accident were negligently undertaken, citing two deficiencies. First, the patching was not flush with the existing pavement, resulting in a difference in elevation between the two surfaces, which he referred to as a "secondary tripping hazard." He also concluded that a segment of the patching eroded — creating the pothole — because the patch was not tack coated with liquid asphalt, thereby allowing "water to enter the joint between the existing asphalt pavement and the patch, weakening the joint and the pavement subgrade and eventually resulting in a failure such as the one occurring here."...