Failure to Construct a Concrete Pad at a Bus Stop Does Not Constitute “Affirmative Negligence” On the Part of the City—Written Notice Requirement Applied

The Second Department determined the city’s failure to install a concrete pad for a bus stop was not the kind of “affirmative negligence” for which prior written notice of a defect is not required.

“Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City” … . The two recognized exceptions to the prior written notice requirement are where the defect or hazard results from an “affirmative act of negligence” by the municipality, or a special use by the municipality that conferred a special benefit from it … . Only when one of these exceptions applies is the written notice requirement obviated … .

The plaintiff’s contention that the City failed to install a concrete bus pad, resulting in the formation of a physical defect in the roadway which caused her to fall, does not amount to an “affirmative act of negligence.” Thus, the plaintiff’s claim requires prior written notice pursuant to Administrative Code of the City of New York § 7-201(c) … . Rodriguez v City of New York, 2015 NY Slip Op 06324, 2nd Dept 7-29-15