Upon the foregoing papers, the motion for summary judgment by defendant the City of New York (hereinafter the"CITY") is granted; the cross motion for like relief by Plaintiff Florence Hanley (hereinafter "PLAINTIFF") is denied.

This matter arises out of an automobile accident which took place on January 21, 2003 on Rockland Avenue in Staten Island, New York. At the time, PLAINTIFF was a high school senior who did not possess a driver's license, but was nevertheless driving a vehicle owned by her father. As she was proceeding westbound between Manor Road and Brielle Avenue, the wheels on the right side of the vehicle allegedly left the paved surface of the roadway and went into a rut. In an attempt to regain control, plaintiff turned the steering wheel to the left, which apparently caused her vehicle to veer into the oncoming lane of traffic, where it was involved in a head-on collision with a non-party to this present action. As a result of the accident, PLAINTIFF claims to have sustained serious physical injuries. Her complaint contains a single cause of action, predicated on the CITY'S alleged negligence in the design, control and maintenance of the subject roadway. In its answer, the CITY claims that (1) it is not liable for the happening of the accident; (2) it is immune from suit; (3) the roadway in question was not defective; and (4) the fault for the accident lies with PLAINTIFF, whose inexperienced and negligent operation of her vehicle caused the ensuing collision.

It is familiar law that the proponent of a motion for summary judgment must make a prima facie showing of a right to judgment as a matter of law, advancing sufficient evidence to demonstrate the absence of any material issues of fact ( see Silverman v. Perlbinder, 307 AD2d 230 [1st Dept 2003]). Thus, it is the proponent of the motion who bears the initial burden of both proof and persuasion ( see Diaz v. Alcantara, 2013 NY Slip Op 30170[U][ Sup Ct NY Co]; Steifman v. Ziegelman, 2012 NY Slip Op 32015[U][ Sup Ct Richmond Co.], citing Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). However, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial" ( Alvarez v. Prospect Hosp., 68 NY2d at 324; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]).

In moving for summary judgment, the CITY claims, among other things, that it cannot be liable for the happening of an accident based upon an alleged defect in the roadway, since it received no prior written notice of the existence of such defect. In support, it relies on New York City Administrative Code §7-201 ( c )( 2 ), which states, in pertinent part:

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, or where there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a CITY agency, or there was written acknowledgment from the City of the defective, unsafe, [*2]dangerous or obstructed condition.

In addition, the CITY argues that it enjoys governmental function immunity on the issue of negligent highway design.

In opposition, PLAINTIFF argues that: (1) the CITY did receive prior written notice as evidenced by its own internal documents demonstrating the existence of previous accidents, as well as work done in the area of the accident in response to various complaints, and (2) alternatively, that the CITY is not entitled to prior written notice since it "caused and created" the condition which led to the accident.

In the opinion of this court, the CITY has demonstrated prima facie its right to judgment as a matter of law. In opposition, PLAINTIFF has failed to establish a triable issue of fact. Accordingly, the CITY'S motion for summary judgment must be granted, and plaintiff's cross-motion denied.

While the records produced by the CITY demonstrate that 12 motor vehicle accidents occurred in the same general vicinity in the five years prior to the happening of plaintiff's accident, none of them was factually similar to the case at bar and, thus, are insufficient to raise a triable issue of notice to the CITY under the "previous injury to person or property" category of notice recognized in the above subdivision of the Administrative Code.

As for plaintiff's claim of notice predicated upon the existence of certain internal CITY documents sufficient to satisfy the "written acknowledgment" prerequisite in the Administrative Code, PLAINTIFF relies on the affidavit of Peter Soderberg, a paralegal from the City's Department of Transportation, who avers that a search for records of complaints, permits and repair work done in the area of the accident for the two years prior to the occurrence revealed nothing pertinent to the defect claimed by plaintiff. This is particularly relevant, because where there is sufficient documentary evidence to show that the City was previously aware of a hazard and the danger it presented, and that it had a reasonable opportunity to remedy same, the purpose of the "prior written notice" provision has been held to be satisfied and the prerequisite to liability fulfilled (Bruni v. City of New York, 2 NY3d 319, 326-327 [2004]).

Notwithstanding the Soderberg affidavit, PLAINTIFF argues that notice may be inferred from a complaint dated May 16, 2002 for a defect (designated as DS 2002136003) described in the computerized printout furnished by the CITY as memorializing the existence of a "large hole, can see curb"on the westbound side of Rockland Avenue. Further, plaintiff claims that this defect is indicated on a Big Apple map attached to the Soderberg affidavit which bears a key marking described in the attached legend as indicating the existence of a "broken, misaligned, or uneven curb". However, this key marking appears at the apex of a bend in the road on the westbound side of Rockland Avenue, which is not the area of the roadway where PLAINTIFF claims that her tires left the pavement. To the contrary, PLAINTIFF testified at her deposition that her vehicle went off the roadway after she had passed the end of the divider separating the opposing lanes of traffic, a [*3]location which is well beyond the apex of the bend in the roadway shown on the aforementioned map, as well as in the photographs of the resting position of the two vehicles involved in the head-on collision. Consequently, any notice of this defect is insufficient, standing alone, to satisfy the "acknowledgment" form of prior written notice contemplated in New York City Administrative Code § 7-201(c)(2)( see Dalton v. City of Saratoga Springs, 12 AD3d 899, 901, fn 2 [3d Dept 2004]; see also Weissman v. City of New York, 29 Misc 3d 1064, 1067-1068 [Sup Ct Queens Co 2010]).

Alternatively, PLAINTIFF argues that she need not demonstrate prior written notice because the CITY "caused and created" the defect at issue. In support of this argument, plaintiff submits expert affidavits from Lawrence M. Levine, a professional engineer, and Bruce McNally, an accident reconstructionist. In sum and substance, they opine that the "drop off" on the westbound side of the roadway was not due to erosion, but rather was intentionally created and maintained in that fashion; that the drop-off constituted a departure from reasonable roadway standards which presented an immediate danger; and that this defect in roadway design was the proximate cause of plaintiff's accident. In addition, both experts contend that any driver whose tires left the paved surface at the location in question would be forced to steer the vehicle back to the left, as PLAINTIFF did, thereby propelling it into the oncoming lane of traffic. In response, the CITY argues that PLAINTIFF has failed to prove that it "caused and created" the cited condition since that particular section of Rockland Avenue had not been worked on for nine years prior to PLAINTIFF'S accident. Accordingly, none of this prior work could be found to constitute an affirmative act of negligence which immediately resulted in a dangerous condition given the lack of proof of any similar occurrences during that nine-year period.

Where, as here, the CITY has established prima facie that it lacked prior written notice under the Section 7-201(c)(2) of its Administrative Code, "the burden shifts to PLAINTIFF to demonstrate the applicability of one of two recognized exceptions to the rule, that the municipality affirmatively created the alleged defect through an act of negligence or that a special use resulted in a special benefit to the locality"( Yarborough v. City of New York, 10 NY3d 726, 728[2008]). Here, PLAINTIFF does not assert the existence of a "special use", but argues under the first exception that the CITY created the defect through an affirmative act of negligence. However, the Yarborough decision cited above expressly notes that in order to be actionable, the " affirmative negligence" exception to the prior written notice requirement "is limited to work by the CITY that immediately results in the existence of a dangerous condition" ( id. at 728, quoting Oboler v City of New York, 8 NY3d 888, 889 [2007][ internal quotation marks omitted]; see Bielecki v City of New York, 14 AD3d 301 [1st Dept 2005]). Critically, it has been held, inter alia, that the requirment of "immediacy" is necessary lest the exception be extended to cases where a dangerous condition has developed over time from, e.g., an allegedly negligent municipal repair, thereby expanding this requirement to "swallow up the [rule]... [and] defeat[ ] the purpose of [ Section 7-201 ( c )( 2 ) of the Administrative Code ]" ( Bielecki v. City of New York, 14 AD3d at 302).

Here, PLAINTIFF has failed to demonstrate that the "affirmative negligence" exception to the prior written notice requirement could apply. The documents submitted by the CITY establish that the last time the CITY re-paved the roadway in the area of plaintiff's accident was approximately [*4]9 years before the subject occurrence. The absence of any similar accidents during all that time demonstrates that no triable issue of fact exists as to whether or not the CITY's negligence, if any, at the time of the work created an immediate danger. In this regard, it is pertinent to note that the CITY has produced all of its records with reference to motor vehicle accidents which occurred in the subject area for the five years preceding the date of this accident, and that none of them was analogous to PLAINTIFF'S accident. Accordingly, the CITY has shown that, even closer in time to the work having been completed, no "immediate" danger was created.

Finally, the CITY argues, in reliance of the case of Valdez v City of New York (18 NY3d 69 [2011]), that to the extent PLAINTIFF'S claim rests upon allegations of negligent design and construction of the roadway on which she was injured, she has failed to rebut or draw into question the CITY'S reliance on the defense of governmental immunity, i.e., to plead and prove that the CITY violated a "special duty" to her, as opposed to the members of the public at large, or that its exercise of discretion in the area of highway design represents a governmental function for which it generally may not be cast in liability. In opposition, PLAINTIFF argues that the design, construction and maintenance of roadways constitutes a ministerial function, for which the CITY may be held liable even in the absence of a special duty if the roadway in question was not made reasonably safe.

"[W] hen both governmental and ministerial actions are asserted [ as the basis for municipal liability] in a negligence case .... the rule that emerges is that [g]overnment action, if discretionary may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general' " (Valdez v City of New York, 18 NY3d at 76-77, quoting McLean v. City of New York, 12 NY3d 194, 203; see Kelsey v. City of New York, 108 AD3d 689 [2d Dept 2013]). Accordingly, plaintiff "must first establish the existence of a special duty owed to them by the [municipality] before it becomes necessary to address whether the [municipality] can rely upon the defense of governmental immunity" (Metz v State of New York, 20 NY3d 175, 179 [2012]).

It is well settled that a special relationship giving rise to a special duty can be formed in one of three ways : (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known, blatant and dangerous safety violation ( id. at 180; see Bawa v. City of New York, 94AD3d 926, 927 [2d Dept 2012] lv denied 19 NY3d 809; Signature Health Ctr., LLC v State of New York, 92 AD3d 11,14 [3d Dept 2011], lv denied 19 NY3d 871). Here, PLAINTIFF has failed to raise any triable issue with reference to the existence of a special duty between herself and the CITY referable to her claim of, e.g. negligent roadway design or construction. ^[FN1] [*5]

Moreover, even if a special relationship could be found to exist, it has repeatedly been held that decisions regarding roadway design and planning represent quintessential governmental functions of a discretionary nature to which immunity will attach in the absence of proof that the decisions were made without adequate study or lacked a reasonable basis ( see e.g., Friedman v. State of New York, 87 NY2d 271; Weiss v. Fote, 7 NY2d 579; Turturro v. City of New York, 77 AD3d 732 [ 2d Dept 2011]; see also Rosko v CITY of New York, 2013 NY Slip Op 51559 [U] [ Sup Ct Richmond Co. September 18, 2013]; Aragona v Ionis,, supra ). There is a total absence of any such proof in the case at bar. Rather, the evidence demonstrates that the CITY had a formal program in place to evaluate its roadways on an on-going basis in order to determine whether repaving or other revisions were warranted in keeping with its nondelegable duty to make its streets reasonably safe for travel. In point of fact, the CITY has presented unrefuted evidence that within one year prior to the instant accident, this particular stretch of roadway had been reviewed by the CITY'S Department of Transportation and received a positive rating of "8 out of 10". The existence of such a program is a clear indication of the CITY'S reasonable efforts to ascertain, e.g., which of the roadways within its jurisdiction required remedial work, and to make meaningful decisions in light of operational experience to keep them safe ( see Turturro v. City of New York, 77 AD3d at 735 and cases cited therein).

Having failed to raise a triable issue in response to the CITY'S prima facie proof of the right to claim governmental function immunity in this case ( see Valdez v. City of New York, 18 NY3d at 76), the CITY'S motion for summary judgment must be granted and PLAINTIFF'S cross motion denied ( id.; cf. Metz v. State of New York, 20 NY3d at 179).

Accordingly, it is

ORDERED that the motion for summary judgment by defendant the City of New York is granted and the complaint dismissed; and it is further

ORDERED that plaintiff's cross motion for summary judgment is denied; and it is further

ORDERED that the Clerk enter judgment accordingly.

E N T E R

Dated: November 17, 2013___/s/__________________________

Hon. Thomas P. Aliotta

J.S.C.