Wallach, J., dissents in a memorandum as follows: The
infant plaintiffs hospital record, in this sidewalk personal injury action, only refers to his injury as being caused by a "runaway” bicycle. We assume, however, as do the majority and the parties to this appeal, that he was caused to fall and sustain injury by a sidewalk defect, namely, the five-inch, protruding stump of a sheared-off parking sign.
It is undisputed that the City never received prior notice of *86this sidewalk hazard pursuant to Administrative Code of the City of New York § 7-201 (c) (2), familiarly known as the "Pothole Law”. Ordinarily, the failure to plead and prove prior written notice to the municipality is fatal to a personal injury action arising from a sidewalk defect (Cipriano v City of New York, 96 AD2d 817), even where it is specifically alleged that the municipality may have "affirmatively created [the] hazardous condition” (Kelly v City of New York, 172 AD2d 350, 351).
Plaintiffs seek in vain to escape the bar of the Pothole Law by arguing that the parking sign constitutes a "special use” of the sidewalk. This contention does not avail to salvage plaintiffs’ cause of action, since the prior written notice requirement of the Pothole Law embraces not only any City street and highway, but also "any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed” (Administrative Code § 7-201 [c] [2]). Efforts have been rejected in attempting to carve out a special use exception from the coverage of the Pothole Law (Meltzer v City of New York, 156 AD2d 124) and similar local administrative code provisions (see, Waters v Town of Hempstead, 166 AD2d 584).
The Fourth Department decision in Tyner v City of Buffalo (152 AD2d 978), cited by plaintiffs, is entirely distinguishable and has no application here. Tyner held that the Buffalo City Charter’s counterpart of the Pothole Law could not constitutionally be expanded to preclude a claim for a missing or inadequate traffic control or signal (i.e., the total absence of a one-way traffic sign), a claim entirely outside the scope of General Muncipal Law § 50-e (4). To the same effect, and similarly inapplicable, is the holding of Doremus v Incorporated Vil. of Lynbrook (18 NY2d 362 [failure to keep a stop sign in visible condition, which allegedly caused a vehicular collision]). The nonexistence of traffic control signage where due care demands its installation is far different from the deterioration of a sign (or any other instrumentality), the relict of which is itself alleged to provide an impediment or hazard to travellers upon the roadway surface.
The majority denies summary judgment in favor of discovery of City records on the issue of the City’s allegedly negligent (i.e., incomplete) removal of the signpost. We note that the complaint (in both original and amended version) alleged in paragraph 29 that "Prior to May 24, 1986 [the date of the accident] defendant new york city removed said pole and sign but left a metal stump embedded in the said sidewalk which *87was approximately five inches high.” In paragraph 30, plaintiffs leveled the identical allegation against defendant Broad-Ell Associates, the owner, operator, manager, maintainer and repairer of the multiple dwelling fronting on the sidewalk in question. The City, in its answer, denied the allegation in paragraph 29.
In support of its summary judgment motion, the City presented affirmations by two employees of its Department of Transportation. The first, by the Director of the Department’s Prior Notification Unit, stated that a search of the Unit’s records had revealed no complaints regarding any defectively removed signposts or protruding sign-stumps at the location in question, filed during the two years preceding the date of the accident. The second, by a Technical Support Aide, stated that a search of records at the Department’s Bureau of Traffic Operations revealed no orders relating to repair of any signposts or protruding sign-stumps at the location in question for the two years preceding the date of the accident.
As the majority’s own cited authority suggests, summary judgment should be denied in such circumstances only where "discovery is likely to produce the information necessary to establish plaintiff’s cause of action” (Rehfuss v City of Albany, 118 AD2d 987). Any factual issue as to the City’s alleged involvement in negligent removal of the signpost has already been laid to rest by that defendant’s unchallenged disclosure on the summary judgment motion.
I would grant reargument and dismiss the complaint.