Bryant v. City of Newburgh

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Orange County (Green, J.), dated April 4, 1991, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff Ella Bryant was injured when she stepped into a pothole on Farrington Street in the City of Newburgh. It is undisputed that the City did not receive prior written notice of the alleged defective condition. Absent such notice, a municipality is liable only for affirmative acts of negligence (see, City of Newburgh Code § C6.45; Zinno v City of New York, 160 AD2d 795; Gallo v Town of Hempstead, 124 AD2d 700; Parella v Levin, 111 AD2d 750). We disagree with the Supreme Court, and find that the plaintiffs failed to raise any issue of fact as to whether the City caused the deteriorated condition of the cobblestone area on Farrington Street where the injured plaintiff fell. The conduct for which the plaintiffs seek to impose liability on the City amounts to nothing more than the failure of the City to repair the deteriorated condition. Bracken, J. P., Balletta, Eiber, O’Brien and Pizzuto, JJ., concur.