The following papers numbered 1 to 4 were marked fully submitted on the 21st day of October, 2011.

PapersNumbered

Notice of Motion for Summary Judgment,

with Exhibits

(dated August 8, 2011)..................................1

Affirmation in Opposition

(dated September 19, 2011)..............................2

Expert Affidavit in Opposition to Motion

(dated September 22, 2011)..............................3

Reply Affirmation in Support of Motion

(dated October 18, 2011)................................4

_____________________________________________________________ ____

Upon the foregoing papers, defendant's motion, inter alia, for summary judgment is denied.

Accordingly to the complaint, plaintiff Andrew Avellino was operating a New York City Department of Sanitation recycling vehicle on June 28, 2004 when the vehicle encountered a series of depressions, ruts, bumps, potholes, elevations and depressions in the roadway , allegedly causing him to sustain severe personal injuries. In the notice of claim, which was filed on September 20, 2004, plaintiff maintains that the accident occurred immediately southwest of Victory Boulevard's intersection with Clove Road, Staten Island, New York (see Plaintiff's Exhibit B ).

Pursuant to section 7-201 of the Administrative Code of the City of New York, a plaintiff in a personal injury action against the City is required to both plead and prove prior written notice of the alleged defect which caused his or her injury. Moreover, it has been held that the prior written [*2]notice to which the City is entitled must designate the specific defect alleged in the complaint, and that an unexplicated claim that a roadway has been generally neglected or become unsafe is not sufficient to satisfy the notice requirement (see (Belmonte v Metropolitan Life Ins. Co., 304 AD2d 471, 474).In support of its motion, inter alia, for summary judgment, the City maintains that Cynthia Howard, an employee of its Department of Transportation ( DOT ) discovered three permits and five repair orders during a standard search of DOT's records for the intersection of Victory Boulevard and Clove Road for the two years prior to and including the date of plaintiff's accident (see Defendant's Exhibit G , p 6). Subsequent to that original search, the City was directed to provide plaintiff with copies of highway maintenance crew or gang sheets pertaining to the same location, whereupon eight complaints or repair orders were uncovered relating to the subject intersection during the same two-year time period. However, in an affidavit dated October 7, 2003, Carmine Sperto, the Deputy Director for the Staten Island Division of Roadway Repair and Maintenance, states that after reviewing seven of the Field Information Tracking System or FITS Reports regarding repair work done in the subject area, the last time any work was performed in this intersection was on August 23, 2003, (see FITS Report No. DS2003203023). He additionally states that while a complaint was received regarding this area on June 4, 2004 (FITS Report No. DS2004158001), the area was examined by a DOT employee on June 16, 2004, and a determination was made that no work was necessary at that time (see Plaintiff's Exhibit G ). The City also proffers the affidavit of Emmanuel Stratakis, an Administrative Superintendent of Highway Operations for Staten Island, who reviewed the remaining (or eighth) civilian complaint regarding the subject intersection, which was allegedly received on March 8, 2004. However, according to the affiant, [t]his complaint relates specifically to a condition at 1201 Victory Blvd.... not the location in question (see Plaintiff's Exhibit I , para 11).

In light of the above, while the City has, to some extent, demonstrated that it had no prior written notice of the alleged defect prior to plaintiff's injury (see DeSilva v City of New York, 15 AD2d 252 [holding that work permits do not satisfy the Administrative Code's notice provision]), this same evidence also establishes that certain of the FITS reports indicating that a pothole existed in the subject intersection had been reduced to writing after being reported by telephone, and resulted in DOT performing actual repair work at the location. In the opinion of this Court, these reports raise an issue of fact as to whether the City obtained the requisite notice of the defect alleged by plaintiff in the form of one of these written acknowledgments (see Bruni v City of New York, 2 NY3d 319; cf. Dalton v Cit of Saratoga Springs, 12 AD3d 899).

Here, Mr. Sperto has acknowledged in his affidavit that repairs were performed at the subject location in August 2003, less than one year before plaintiff's accident. In addition, upon applying Mr. Stratakis's interpretation of the designation XCL on a FITS report to mean that the DOT performed work at the site indicated (see Plaintiff's Exhibit J ), it would appear that additional work was performed by DOT at the location as the result of complaints reported on both January 13, 2004 and June 6, 2004 (see City's Exhibits E and G ). Finally, the additional forms annexed to the City's Exhibits E and G (entitled History of Defect No. DS2004013030"; History of Defect No. DS2004158001") are clearly designated with an XCL and also bear the notation that the action taken was to Close [a] Defect . These facts at least suggest that work was performed in response to the complaints lodged on January 13, 2004 and June 6, 2004, and are not inconsistent with Mr. Sperto's statement that a DOT employee determined that no work was deemed necessary [*3]following an inspection performed on June 16, 2004. This conclusion, reached prior to plaintiff's injury on June 28, 2004, fails to establish as a matter of law that the DOT employee was correct or that a defect at the same location did not appear subsequently. A street repair performed by the City is actionable if it immediately results in a dangerous condition as opposed to normal wear and tear (cf. Oboler v City of New York, 8 NY3d 888; see generally Smith v Mayor, 17 App Div 438).

Finally, any attempt by the City to differentiate between the report of a hummock and that of an ordinary pothole lacks any evidentiary basis on the papers submitted in support of its motion. Neither is the action barred by the 15-day grace period incorporated into section 7-201 of the City's Administrative Code^[FN1].

Accordingly, it is hereby

ORDERED, that the City's motion is denied in its entirety.

E N T E R,

__/s/____________________________

Hon. Thomas P. Aliotta

J.S.C.

Dated: December 7, 2011