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            In Bah v. The City of New York, the plaintiff claimed that he was driving a taxicab on Lexington Avenue and East 44^th Street, when an explosion underneath the street, “caused debris, including a manhole cover, to fly up, and crash into the taxi…causing the plaintiff to sustain severe, serious, and permanent personal injuries.” Plaintiff alleged that the New York City Department of Transportation and the City of New York (collectively, the "City") owned, maintained, operated, controlled, and repaired the street, and manhole at this location and had a duty to keep the street and manhole-including the area below ground under the manhole-free from obstructions and defects, and that its failure to do so led to the explosion causing plaintiff’s injury.

                The City moved for summary judgment on the grounds that they did not receive prior written notice of  “the allegedly defective Con Ed manhole condition.” The City’s argument rested on the claim that the City did not have written notice of any gas leaks or electrical cable malfunctions near the manhole on Lexington Avenue and East 44^th Street as required by Administrative Code §7-201, which provides, no civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk, or any part or portion of any of the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous, or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice...and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger, or obstruction complained of, or the place otherwise made reasonably safe.

             In support of their motion, the City submitted the testimonies of a Con Ed engineer, who was unable to determine the cause of the subject explosion, and a DOT employee, who attested to the extensive DOT records relating to the roadway area where the subject explosion took place.

            Hon. Judy H. Kim noted that "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986].

           The Court found that since the City failed to prove what caused the subject explosion, the City could not claim to have not had written notice of the condition that caused the subject explosion. Based on the evidence presented, the City could only show that they did not have written notice of a condition which may have caused the subject explosion. This material issue of fact warranted the denial of the City’s motion for summary judgment.

           In sum, this case establishes that the City must prove both what specific condition caused an accident and that the City was not given notice of the specific condition as required by Administrative Code §7-201 in order to be entitled to summary judgment in such circumstances.

Please call Roger Frankel with any questions.