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QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiffs had raised a question of fact whether the city created the dangerous condition, a sinkhole in the roadway, which caused plaintiffs injuries after a wheel on their police car went into the hole:

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… [P]laintiffs have met their burden of showing that there are triable issues of fact as to whether the City’s affirmative negligence created the defect … . Specifically, plaintiff’s testimony and affidavit demonstrate that the City attempted to repair the sinkhole on August 27, 2011. Moreover, the City has conceded based on the CAR report that it worked to fill the sinkhole on August 27, 2011 (eleven days prior to the accident) and August 28, 2011 (ten days prior to the accident). The affidavit of plaintiffs’ expert raises the issues of whether the City’s affirmative repair of the sinkhole negligently created a defective condition causing the repair to fail immediately after it was made. There is nothing in the record here to indicate that the dangerous condition in question developed over time … . Bania v City of New York, 2018 NY Slip Op 00470, First Dept 1-25-18

MUNICIPAL LAW (NEGLIGENCE, TRAFFIC ACCIDENTS, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))/HIGHWAYS AND ROADS (MUNICIPAL LAW, TRAFFIC ACCIDENTS, NEGLIGENCE, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))/SINKHOLES (MUNICIPAL LAW, TRAFFIC ACCIDENTS, NEGLIGENCE, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))/TRAFFIC ACCIDENTS (SINKHOLES, MUNICIPAL LAW, NEGLIGENCE, QUESTION OF FACT WHETHER CITY CREATED THE ROADWAY SINKHOLE BY INADEQUATE REPAIR, COMPLAINT SHOULD NOT HAVE BEEN DISMISSED IN THIS TRAFFIC ACCIDENT CASE (FIRST DEPT))

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PLAINTIFFS STATED A CAUSE OF ACTION FOR FRAUD AND PROPERLY ALLEGED A CIVIL CONSPIRACY (FIRST DEPT).
COMPLAINT STATED A CAUSE OF ACTION FOR CONSTRUCTIVE FRAUD BUT THE HEIGHTENED PLEADING REQUIREMENTS FOR ACTUAL FRAUD WERE NOT MET (FIRST DEPT).
DEFENDANT PROPERTY OWNER/MANAGER’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED; DEFENDANTS DEMONSTRATED THEY DID NOT HAVE NOTICE OF ANY PROBLEMS WITH A DOOR WHICH ALLEGEDLY MALFUNCTIONED CAUSING PLAINTIFF’S DECEDENT TO FALL OUT OF A WHEELCHAIR LIFT (FIRST DEPT).
JUDGE SHOULD NOT HAVE, SUA SPONTE, AFTER A COMPLIANCE CONFERENCE, ISSUED A PRECLUSION ORDER BECAUSE THERE WAS NO MOTION PENDING (FIRST DEPT).
BELATED FILING OF COVER SHEETS, UNDER THE UNIQUE COVID-19-RELATED CIRCUMSTANCES IN NEW YORK CITY, WAS NOT A FATAL DEFECT (DISAGREEING WITH THE SECOND DEPARTMENT) (FIRST DEPT).
NOTICE OF CLAIM TIMELY SERVED AS A MATTER OF LAW UNDER THE CONTINUOUS TREATMENT DOCTRINE.

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