On March 9, 2016, plaintiff Yosaif Frommell, a 31-year-old unemployed man, was motorcycling on Coney Island Avenue, in the Flatbush section of Brooklyn. While he was approaching the intersection at Avenue C, his motorcycle’s front wheel entered a pothole. Frommell resultantly fell onto the roadway, and he suffered an injury of an ankle.

Frommell sued the roadway’s owner, the city of New York. He also sued three entities that were believed to have excavated a portion of the roadway, The Brooklyn Union Gas Co., Consolidated Edison Company of New York Inc. and Tri-Messine Construction Co. Inc. The lawsuit alleged that the defendants negligently created a dangerous condition that caused Frommell’s accident. The lawsuit further alleged that the city negligently failed to address the hazard.

Frommell’s counsel discontinued the claims against Brooklyn Union Gas, Consolidated Edison and Tri-Messine Construction. The matter proceeded against the city of New York.

Frommell’s counsel claimed that the pothole was a residual effect of one of two excavations that had been performed three days prior to the accident, by one of the city’s agents, the New York City Department of Environmental Protection. Frommell’s counsel contended that the excavated areas were not sufficiently backfilled and patched.

Defense counsel contended that Frommell’s accident may have been caused by a pothole that was outside of the excavated area and previously unreported to the city.