Most municipalities have a prior written notice requirement regarding  defects in sidewalks and streets.  However, an exception exists at common-law that prior written does not apply where the municipality’s affirmative act created the hazard or defect.

An Appellate Division, First Department case — Bielecki v. City of New York — seems to have put a further glean on the exception.  The Bielecki holding indicates that an injured plaintiff can demonstrate that the defect is the  result of  an affirmative act by presenting evidence that the repair immediately resulted in a dangerous condition.

Last week, the New York Court of Appeals heard oral arguments on the application of Bielecki.  The appeal —  Yarborough v. City of New York — concerns a plaintiff who injured himself on a pothole on a New York City street.  The plaintiff argued in opposition to the City’s motion to dismiss that the City had created the defect through negligent repair and, therefore, prior written notice was not required.  An engineer for the plaintiff stated in an affidavit that the prior patching of the pothole "was improperly performed resulting in the recurring hole and depression."  The Appellate Division, Second Department granted the motion to dismiss, concluding that the plaintiff submitted no evidence as to when the street repair
occurred in relation to the accident or that the repair immediately
resulted in a dangerous condition.

At the Court of Appeals, the plaintiff is arguing his suit should be reinstated, claiming that the testimony of his experts "established a prima facie case of negligence under the standard set forth in Bielecki since the patch repair immediately resulted in a defective condition."   He also asks the Court "to hold that even under Bielecki, a defect that was or should have been known at the time of the repair constitutes an exception to prior written notice statutes where there is adequate evidence of same."

NYCL will keep you apprised of the Court’s holding when it is handed down.