We concur with the majority’s disinclination to adopt the rationale of the First Department in Bielecki v City of New York (14 AD3d 301 [2005]) and their determination that an ineffectual pothole repair which does not make the condition any worse would not be an affirmative act of negligence. Yet, we believe that Supreme Court erred in not submitting this case to the jury.
The testimony and exhibits show that the subject road was resurfaced in 1967. At that time, the specifications for resurfac*853ing called for the placement of asphalt blacktop on top of a solid concrete base. A photograph of the pothole into which plaintiff Harry Kushner rode shows cobblestones beneath the asphalt, contrary to the solid concrete base called for by the specifications. While defendant’s employee initially testified that paving over cobblestones will undermine a roadway surfacing— testimony that he later contradicted at trial—plaintiffs’ expert, Joseph McHugh, a civil engineer, testified that this failure to abide by the specifications was one of the causes of the pothole. McHugh further testified, after examining the longitudinal pitch of the drainage system on the relevant portion of the roadway, that defendant’s failure to provide positive drainage to the drainage structure led to a pooling of water that caused a deterioration of the roadway. Since we cannot conclude, upon this evidence, that “ ‘there is no rational process by which [the trier of fact] could [have found] for [plaintiffs]’ ” (Fellion v Darling, 14 AD3d 904, 906 [2005], quoting Clemente v Impastato, 274 AD2d 771, 773 [2000]), we believe that Supreme Court erred when it granted defendant’s motion for a directed verdict.
Kane, J., concurs. Ordered that the judgment is affirmed, without costs.