A motorist struck a large hole in the road. After getting out of his vehicle, he was hit by a car driven by an intoxicated person. The motorist sued the City of New York (City) for damages. The Supreme Court, New York County granted the City's motion for summary judgment. On appeal, the Supreme Court, Appellate Division, First Department held (1) that prior written notice of the defective condition was not required in view of evidence that the City created the hazard and (2) that a factfinder could have concluded defects in the road were the proximate cause of the collision. The appellate court reversed the trial court's decision.

THE COLLISION

On May 29, 1983 at about 7:15 a.m., Juan Cruz traveled north on FDR Drive in New York City. His vehicle struck a large hole or depression near East 6th Street. The car came to a stop in the right lane near East 10th Street--where there was no shoulder. When Cruz got out of his car and walked behind it to inspect the damage, Muriel Alleyne's car hit Cruz and his car. Alleyne was convicted of operating a motor vehicle while under the influence of alcohol and of assault in the second degree.

TRIAL COURT DECISION

New York City moved for a dismissal of Cruz's complaint against it. The City argued that it had received no prior written notice of the alleged road defect and that the condition of the road was not the proximate cause of Cruz's injuries. An affidavit from the Director of the Prior Notification Unit of the New York City Department of Transportation stated that no complaints had been filed before this incident for the northbound lanes of FDR Drive between 6th and 10th Streets. On or about October 19, 1993, the Supreme Court, New York County granted the City summary judgment, dismissing Cruz's complaint.

APPELLATE COURT DECISION

The Supreme Court, Appellate Division, First Department examined Cruz's assertion that written notice of the roadway defect was not necessary because "the defect was affirmatively created by the City." Cruz also argued that no statutory notice was required because the condition of the road was "open and obvious." Further, Cruz contended that City inspectors who were in the area before the crash had a duty to report the hazard.

The appellate court found a record of deposition testimony from the Borough Supervisor for the City Department of Transportation's Division of Highway Maintenance. That deposition showed that the Supervisor had requested resurfacing for all of FDR Drive. The deposition referred specifically to a request, before this collision, for resurfacing the northbound lanes of FDR Drive from South Street to 14th Street.

Regarding the issue of proximate cause, Cruz asserted that the "defective condition" cited in his case was the rippled roadway surface from South Street to 14th Street. The record included an engineer's affidavit attributing the poor condition of the road to defective asphalt resurfacing. This asphalt, unlike the original roadway, failed to include expansion joints. Cruz contended that the events preceding his injury were neither extraordinary nor unforeseeable. Thus, Alleyne's actions did not constitute a "superseding cause" which would insulate the City from liability.

The trial court rejected the City's argument that, because the engineer's affidavit was not based on personal knowledge, it did not represent notice of the defective roadway condition. That court did, however, grant the City's motion to dismiss the complaint, because the court concluded it was Alleyne's driving while intoxicated that caused Cruz's injuries. Although it could be foreseen that the condition of the road would result in damage to Cruz's car, the trail court felt Alleyne's actions were not foreseeable.

The appeals court agreed with the trial court that written notice of the roadway's defective condition was not required. The appellate court felt, however, that the trial court reached this conclusion for the wrong reason. Accepting the City's argument, the appeals court found the affidavit of an official responsible for keeping an indexed record of all notices of defective conditions was "sufficient to establish that no prior written notice was filed (New York City Administrative Code § 15 7-201(c)[3])."

On the other hand, the appeals court found merit in Cruz's argument that the facts in his case fell within the written-notice exception applicable to defects caused by the City itself. The engineer's affidavit was "sufficient to raise a triable issue of fact as to whether the City created or caused a hazardous condition . . ." That affidavit explained that expansion joints prevent the road surface from rippling (as the surface of FDR Drive had rippled) as a result of temperature fluctuations and heavy stop-and-go traffic. The City accepted the engineer's affidavit, and, in fact, repaved the road shortly after this collision. The City did not argue that any other agency was responsible for the repaving of FDR Drive.

Accepting Cruz's argument that the roadway defect was "open and notorious," the court maintained the City should have noticed such a defect without receiving written notice. The court held that prior written notice should apply only to conditions that would not ordinarily come to the City's attention. Highway crews that had been working in this area should have reported the defect.

Citing a prior Court of Appeals decision, the appeals court also concluded that the trial court erred in granting the City a summary judgment based on the City's claim that Alleyne' driving was the proximate cause of the Plaintiff's injuries. The court added:

The court ruled that Cruz did not need to establish that the actual occurrence of the collision was foreseeable. Given FDR Drive had no shoulder, a factfinder could reasonably determine that defects in this heavily traveled highway might cause a vehicle to break down in a traffic lane. Such a breakdown would create a collision hazard with other vehicles traveling at high speeds. In addition, the court concluded it was foreseeable that an intoxicated person might use this roadway.

The Supreme Court reversed the trial court's decision.