St. Nicholas Avenue between 124th Street and 125th Street. Image credit: Google Maps.

Police officers were injured when their car struck a pothole that had been repaired by the City. On September 7, 2011, at about 12:40 a.m., while on patrol, two New York City police officers sustained personal injuries when their vehicle’s tire fell into a roadway hole located in the northbound lane of Saint Nicholas Avenue between 124th Street and 125th Street. 

Both officers sued the City. The officers alleged that their injuries was caused by a dangerous, defective and uneven roadway maintained by the City. One of the officers testified that she observed the sinkhole eleven days prior to the accident and had reported it to the Department of Transportation. DOT records indicated that a complaint of the damaged roadway had been made eleven days prior to the accident and that the area had been inspected on that day and that DOT had attempted to repair the damaged roadway.

The officers alleged that no written prior notice was needed because the City had affirmatively created the defect in question through an act of negligence. An expert witness who testified for the officers stated that any attempted patch repair of the sinkhole—“without excavation, proper backfilling and tamping—would begin to fail almost immediately and manifest itself in the recurrence of the sinkhole.”

The lower court dismissed the officer’s complaint.  The Appellate Division, First Department reversed, reinstated the complaint and ruled that the officers had sufficiently met their burden of raising triable issues of fact as to the City’s liability.

An action against the City for damages as a result of a defective or dangerous roadway may be maintained without prior notice to the City if the City itself caused the dangerous condition. The court ruled that the officers produced sufficient evidence for a trial on whether the City had affirmatively created the defect by its method of repair. The Appellate Division sent the case back for trial.

Bania v. City of N.Y., 157 A.D.3d 612 (1st. Dep’t. 2018).

By: Ross Sandler