Miller v. City of New York

The IAS Court properly denied the City’s motion to dismiss the complaint on the grounds that the City had not been given prior written notice of the alleged highway defect pursuant to Administrative Code of City of New York § 7-201 (c) (2). Such notice is not required where it is shown that the municipality was affirmatively negligent in causing or creating the defective condition (see, Messina v City of New York, 190 AD2d 659). Here, sufficient evidence was adduced at trial to support a finding that the City negligently left in place an inadequately secured guard rail section adjacent to the sign post into which plaintiff’s decedent’s car crashed (cf., supra). Plaintiff’s engineering and highway expert concluded that, based on photo exhibits, the guard rail section had not been equipped with the number of bolts required to secure an extended line of railing. Moreover, "work order” documents indicated that repair work had been done by the City on the Gowanus Expressway guard rail near 38th and 39th Streets, where the accident later occurred. We have considered the parties’ remaining arguments for affirmative relief and find them to be without merit. Concur— Murphy, P. J., Rosenberger, Ross and Mazzarelli, JJ.