Cabrera v. City of New York

• Court: New York Supreme Court — Appellate Division
• Citation: Cabrera v. City of New York, 21 AD3d 1047, 803 N.Y.S.2d 584, 2005 NY Slip Op 6891 (N.Y. App. Div. 2005)
• Decision Date: 26 September 2005
• Docket Number: 2004-00932.
• Parties: STEPHANIE CABRERA et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendants.

21 A.D.3d 1047

803 N.Y.S.2d 584

2005 NY Slip Op 06891

STEPHANIE CABRERA et al., Appellants, v. CITY OF NEW YORK, Respondent, et al., Defendants.

2004-00932.

Appellate Division of the Supreme Court of the State of New York, Second Department.

September 26, 2005.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated November 17, 2003, which granted the cross motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it, and denied, as academic, their motion to restore the matter to the trial calendar.

Ordered that the order is reversed, on the law, with costs, the cross motion is denied, and the matter is remitted to the Supreme Court, Queens County, for a determination of the plaintiffs' motion.

The infant plaintiff allegedly tripped and fell on a piece of metal pipe which protruded from the ground while roller skating in Flushing Meadows Corona Park, and sustained personal injuries. Thereafter, the plaintiffs commenced a personal injury action against, among others, the City of New York, alleging that the City created the defective condition. After the case was struck from the trial calendar, the plaintiff moved to restore the matter to the calendar, and the City cross-moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it did not have notice of nor did it create the defective condition.

"Pursuant to Administrative Code of the City of New York § 7-201 (c) (2), a plaintiff must plead and prove that the City had prior written notice of a street defect before it can be held liable for its alleged negligence in failing to maintain its streets in a reasonably safe condition" (Estrada v. City of New York, 273 AD2d 194 [2000]). It is undisputed that the City had no prior written notice of the alleged defect. However, prior written notice is not required if the defendant caused or created the alleged defect (see Amabile v. City of Buffalo, 93 NY2d 471, 474 [1999]; Ovisinak v. Town of Southold, 277 AD2d 295 [2000]; Gormley v. County of Nassau, 150 AD2d 342 [1989]).

In support of its cross motion, the City annexed the deposition transcript of a former parks supervisor who testified that the City or contractors employed by the City performed construction work in the area where the plaintiff fell. Further, the former parks supervisor testified that...