Opinion
2013-07737 Index No. 8703/06.
12-09-2015
Dashana WILLIAMS, etc., et al., appellants, v. CITY OF NEW YORK, respondent.
Bloomberg, Steinberg & Bader (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III], of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein, Christina Chung, and Antonella Karlin of counsel), for respondent.
Bloomberg, Steinberg & Bader (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III], of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein, Christina Chung, and Antonella Karlin of counsel), for respondent.
Opinion
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Ash, J.), entered June 13, 2013, which, upon an order of the same court (Velasquez, J.) dated March 16, 2012, denying that branch of their motion which was pursuant to CPLR 3123 for a determination that the matters set forth in their notice to admit had been admitted by the defendant, an order of the same court (Ash, J.) dated December 7, 2012, denying their motion to strike the defendant's answer, and an order of the same court (Ash, J.) dated March 14, 2013, granting the defendant's cross motion for summary judgment dismissing the complaint, is in favor of the defendant and against them dismissing the complaint.
ORDERED that the judgment is affirmed, with costs.
“Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained [sidewalk] unless either it has received prior written notice of the defect or an exception to the prior written notice requirement applies” (Griesbeck v. County of Suffolk, 44 A.D.3d 618, 619, 843 N.Y.S.2d 162). The only recognized exceptions to the prior written notice requirement involve situations in which either the municipality created the defect through an affirmative act of negligence, or a special use confers a special benefit upon the municipality (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873; Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).
Here, the defendant City of New York, which owned the property abutting the sidewalk where the infant plaintiff allegedly fell, established its prima facie entitlement to judgment as a matter of law by submitting evidence that it had no prior written notice of the defect in the sidewalk which allegedly caused the infant plaintiff's injuries (see Administrative Code of City of N.Y. § 7–201[c]; Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873; Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104; Rochford v. City of Yonkers, 12 A.D.3d 433, 786 N.Y.S.2d 535). In opposition, the plaintiffs failed to raise a triable issue of fact with regard to written notice or the applicability of any notice exception, including the City's alleged special use of the portion of the sidewalk where the injured plaintiff allegedly fell (see Bogorova v. Incorporated Vil. of Atl. Beach, 51 A.D.3d 840, 841, 858 N.Y.S.2d 349).
Accordingly, the Supreme Court correctly granted the City's cross motion for summary judgment dismissing the complaint (see De La Reguera v. City of Mount Vernon, 74 A.D.3d 1127, 1128, 904 N.Y.S.2d 108).
The plaintiff's remaining contentions have been rendered academic in light of our determination.