City Failed to Affirmatively Prove It Did Not Have Notice of Dangerous Condition

The Second Department determined the city’s failure to submit proof it had not received notice of a defective condition precluded summary judgment in the city’s favor:

As the party moving for summary judgment, in order for the defendant City of New York to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint … on the ground that it had no prior written notice of the alleged defective or dangerous condition (see Administrative Code of the City of New York § 7-201[c]), it was required to submit proof that it did not receive the notice required by the statute … . The City failed to submit any affidavit from any City official or employee demonstrating that a search of the appropriate records had been done and that there was no prior written notice of the alleged dangerous condition that caused the plaintiff’s accident, and there was nothing in the deposition testimony of the three City witnesses that indicated that a search of the City records had been conducted without any success in finding any prior written notices. As such, the City failed to make a prima facie showing that no prior written notice was actually received … .   Martinez v City of New York, 2013 NY Slip Op 02723, 2nd Dept, 4-24-13