PARKS v. HUTCHINS, 78 N.Y.2d 1049 (1991)

581 N.E.2d 1339, 576 N.Y.S.2d 84

VERONICA K. PARKS et al., Respondents, v. THEODORE HUTCHINS et al., Defendants, LONG ISLAND RAIL ROAD, Respondent, and CITY OF NEW YORK, Appellant.

Court of Appeals of the State of New York.Argued September 5, 1991
Decided October 17, 1991

Appeal from the Supreme Court, Kings County, Bernard Fuchs, J.

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Victor A. Kovner, Corporation Counsel (Trudi Mara Schleifer
and Ellen B. Fishman of counsel), for appellant.

Charles Haydon and Thomas Rubertone for Veronica K. Parks and another, respondents.

Steven J. Ahmuty, Jr., for Long Island Rail Road, respondent.

MEMORANDUM.

The judgment appealed from and the order of the Appellate Division brought up for review should be affirmed, with costs.

We agree with the Appellate Division that, in the circumstances of this case, defendant City of New York was not entitled to prior written notice pursuant to the so-called “pothole law” (Administrative Code of City of New York § 7-201 [c] [2] [formerly § 394a-1.0 [d] [2]), and that, the evidence adduced at trial was sufficient to support the jury’s conclusion that defendant committed negligent acts which constituted a proximate cause of the injuries sustained by the plaintiffs (see, Cohen v Hallmark Cards, 45 N.Y.2d 493, 499).

Inasmuch as the question of the apportionment of liability between the parties following the Appellate Division’s dismissal of the complaint against defendant Long Island Rail Road was neither raised nor argued in this Court we have no need to address that issue.

We have examined the appellant’s remaining contentions and find them without merit.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE and HANCOCK, JR., concur; Judge BELLACOSA taking no part.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs, in a memorandum.