The New York Court of Appeals recently granted a motion for leave to appeal in Yarborough v. City of New York. The matter involves a plaintiff who injured himself on a pothole on a New York City street. The leaveworthy issue apparently involved in the case was what evidence was the plaintiff required to proffer to raise an issue of fact to establish that there was an affirmative act of negligence of New York that created the defect.
The Court in Yarborough observed:
The plaintiff's engineers submitted sufficient evidence that the City was the only entity that could have been responsible for the allegedly defective street repair, and outlined the manner in which the repair deviated from relevant construction industry practices. However, 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. The mere “eventual” emergence of a dangerous condition as a result of wear and tear and environmental factors, as described by one of the plaintiff's experts, does not constitute an affirmative act of negligence that abrogates the need to comply with prior written notice requirements.
NYCL will keep you abreast of developments in this case.