In that regard, pursuant to Administrative Code of the City of New York §7-201, a plaintiff is required to both plead and prove that the City had prior written notice of the specific defect that caused the plaintiff's fall. In fact, New York's highest court has held that when a Big Apple Map is used to satisfy the prior written notice requirement, the type and location of the defect must be precisely noted on the map. See, D'Onofrio v. City of New York, 11 N.Y.3d 581 (2008).
But what if the plaintiff can't show that the City had "notice" of the defect? Is his case dead on arrival?
The City can still be held liable in negligence if it either affirmatively created the defect or if the roadway was used for a "special use" which conferred a special benefit upon the City. See, Oboler v. City of New York, 8 N.Y.3d 888, 889 (2007). To that end, if the plaintiff claims that the City caused or created the condition, the plaintiff is required to prove through evidence in admissible form that the City's negligence "immediately result[ed] in the existence of a dangerous condition." Yarborough v. City of New York, 10 N.Y.3d 726 (2008) (citations omitted); see also, Bielecki v. City of New York, 14 A.D.3d 301 (1st Dept 2005).