(dissenting in part). I dissent on one issue: whether the plaintiff has raised a question of fact that the City can be held responsible for plaintiffs accident. She has not; therefore, the complaint should be dismissed in its entirety.
The majority correctly notes that because there was no prior written notice of the defect, the burden is on plaintiff to establish the City’s liability. The majority is also correct that the City can only be responsible if it created the defect by its negligent construction or repair, and if the work immediately results in the existence of a dangerous condition (Yarborough v City of New York, 10 NY3d 726, 728 [2008], citing Bielecki v City of New York, 14 AD3d 301[2005]).*
The majority relies primarily on the plaintiffs expert’s report, which dealt primarily with the following alleged defects:
“the curb ramp provides an ‘abrupt vertical transition’ which is dangerous and hazardous to users at the base of the ramp creating a significant tripping hazard . . . The difference in heights creates a trap and snare due to the change in levels . . . Either the curb has sunk relative to the ramp and was *31paved over or the curb is missing entirely. In either case, there is no protective curb in place, thereby permitting the raised concrete ramp to be exposed to impact traffic . . . [T]he concrete ramp was improperly constructed too thin at the base of the ramp at only lW to 2" thick, which permitted premature failure of the concrete.”
Even accepting the expert’s observations, they are completely irrelevant to the issue before us. Plaintiff never stated any of these conditions were the cause of her fall. She stated, unequivocally, that the fall resulted from her stepping into a hole. Although the report makes reference to a hole leading from a crack in the pavement, nowhere in the expert’s report does he state the actions of the City resulted in the immediate creation of that hole. At best, the report indicates there may have been a layer of pavement that gradually wore away or cracked because of constant traffic, thereby creating the hole over time. However, there is nothing but pure speculation to say that hole was an immediate result of the City’s work.
Accordingly, plaintiff failed to meet her burden under Yarborough that the actions of the City resulted in the immediate creation of the hazard that caused her injury.
Saxe and Freedman, JJ., concur with Acosta, J.; Tom, J.P., and Sweeny, J., dissent in part in a separate opinion by Sweeny, J.
Order, Supreme Court, New York County, entered February 25, 2008, reversed, on the law, without costs, the motion granted, and the complaint and all cross claims dismissed as against defendants property owner and property manager. Order, same court, entered February 25, 2008, affirmed, without costs. Appeal from order, same court, entered February 25, 2008, dismissed, without costs, as academic. The Clerk is directed to enter judgment in favor of defendants property owner and property manager dismissing the complaint and all cross claims.
There is a second ground to establish liability, namely, the creation of a special use by the City, which eoncededly does not apply here.