Pothole Injury Case Dismissed in Light of Prior Repairs

A recent First Department decision, Abott v. City of New York, holds that the trial court properly dismissed plaintiff’s trip-and-fall complaint:

The court properly directed a verdict for defendant City, as there was no rational process that would lead the trier of fact to find for plaintiff, who was injured after stepping into a pothole. The Pothole Law’s written notice requirement (Administrative Code of City of NY § 7—201[c][2]) contains a “written acknowledgement” provision which permits a lawsuit “where there is documentary evidence showing, as clearly as written notice to DOT would show, that the City knew of the hazard and had an opportunity to remedy it”. However, repair orders or reports, reflecting only that pothole repairs had been made to the subject area more than a year before the accident, are insufficient to constitute prior written notice of the defect that allegedly caused a plaintiff’s injuries. Here, the record demonstrates that plaintiff presented no evidence or testimony which contradicted the City’s documentation showing that the subject defect had been repaired, closed, and made safe, more than a year prior to the accident. (Emphasis added.)

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