In Oboler v City of New York 2007, NY Slip Op 02441, the New York Court of Appeals considered the issue of whether the plaintiffs had established an exception to the prior written notice law. In Oboler, the injured plaintiff fell when he tripped over a "depressed manhole cover" and subsequently brought suit against the City of New York.
The Court noted that the City had no prior written notice of the alleged hazard as required by the City's administrative code, and thus the City could be held liable only if one of the two well recognized exceptions to the prior written notice rule was established by the plaintiffs--that the City either created the defect in the manhole through an affirmative act of negligence that immediately resulted in the dangerous condition or that a "special use" conferred a special benefit upon the City.
The Court concluded that the plaintiffs failed to meet their burden of proving an exception to the "special use" doctrine:
Here, plaintiff presented no evidence of who last repaved this section of the roadway before the accident, when any such work may have been carried out, or the condition of the asphalt abutting the manhole cover immediately after any such resurfacing. Next, even assuming that the special use doctrine applies to a manhole situated in a City public street, plaintiffs presented no proof of any special benefit conferred on the City. Finally, we note that the expert's opinion was not inadmissible merely because nearly four years elapsed between the accident and the expert's inspection of the site. Because the expert could not supply any reliable evidence as to the elements of the exceptions to the prior written notice law, however, whether the trial court erred in precluding the expert's testimony is a question that does not affect the outcome of this case.
That's all well and good, but it seems to me the Court ignored the elephant in the room--the manhole cover's alleged depression. It sounds like it was pretty severe. I can't help but wonder if all of this could been avoided if the manhole cover had sought out treatment. A little preventative Prozac could have done a lot of good in this sad, sad case.