Burgos v. City of N.Y.
| Decision Date | 09 February 2022 |
| Docket Number | 2019–10045,Index No. 704987/17 |
| Parties | Justino BURGOS, appellant, v. CITY OF NEW YORK, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
202 A.D.3d 744
158 N.Y.S.3d 841 (Mem)
Justino BURGOS, appellant,
v.
CITY OF NEW YORK, et al., respondents.
2019–10045
Index No. 704987/17
Supreme Court, Appellate Division, Second Department, New York.
Submitted—November 18, 2021
February 9, 2022
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, NY (Michael F. Villeck and Melissa C. Ingrassia of counsel), for appellant.
Georgia M. Pestana, Corporation Counsel, New York, NY (Devin Slack and Anna Gottlieb of counsel; Robert Ayers on the brief), for respondents.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered August 20, 2019. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against the defendant
City of New York on the ground that the notice of claim did not comply with General Municipal Law § 50–e(2).
ORDERED that the order is affirmed insofar as appealed from, with costs.
On November 30, 2016, the plaintiff allegedly was injured when he tripped and fell on a sidewalk in Queens. In February 2017, the plaintiff served a notice of claim on the defendants, the City of New York and the New York City Department of Transportation (hereinafter the DOT), alleging that the location of the accident was "the sidewalk on Woodhaven Boulevard, between Booth Street and Queens Boulevard, and on the sidewalk located underneath the Long Island Expressway overpass." On April 24, 2017, the plaintiff was examined under oath pursuant to General Municipal Law § 50–h. Thereafter, the plaintiff commenced this action against the defendants, alleging that they were negligent in, among other things, the maintenance and repair of the sidewalk. In May 2019, the defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against the City on the ground that the notice of claim did not comply with General Municipal Law § 50–e(2), and insofar as against the DOT on the ground that it is a City agency that cannot be sued separately from the City. In an order entered August 20, 2019, the Supreme Court granted the defendants’ motion. The plaintiff appeals from so much of the order as granted that branch of the defendants’ motion which was to dismiss the complaint...
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