Practice point: On a motion for summary judgment dismissing the complaint, the
City has the initial burden of establishing that, under the Pothole Law, it lacked prior written
notice of the defect or hazard. On a sufficient showing, the burden
shifts to the plaintiff to demonstrate that the City affirmatively created the defect at issue through a negligent act. The affirmative negligence exception is
limited, however, to the City's work that immediately resulted in a dangerous condition, as opposed to a defect that developed over time.
Case: Bania v. City of New York, NY Slip Op 00470 (1st Dep't. January 25, 2018)
Here is the decision.
