Caramanica v. City of New Rochelle

• Court: New York Supreme Court — Appellate Division
• Citation: Caramanica v. City of New Rochelle, 268 AD2d 496, 702 NYS2d 351 (N.Y. App. Div. 2000)
• Decision Date: 24 January 2000
• Parties: DOMINIC CARAMANICA et al., Respondents,<BR>v.<BR>CITY OF NEW ROCHELLE, Appellant, et al., Defendants.

268 A.D.2d 496

702 N.Y.S.2d 351

DOMINIC CARAMANICA et al., Respondents,

v.CITY OF NEW ROCHELLE, Appellant, et al., Defendants.

Decided January 24, 2000.

Sullivan, J. P., Krausman, McGinity and H. Miller, JJ., concur.

Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v Green Constr. Corp., 100 AD2d 509); and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, that branch of the plaintiffs' motion which was to dismiss the fifth affirmative defense asserted in the appellant's answer is denied, the appellant's cross motion for summary judgment dismissing the complaint insofar as asserted against it is granted, and the action against the remaining defendants is severed; and it is further,

Ordered that the appellant is awarded one bill of costs.

On February 13, 1996, the plaintiff Dominic Caramanica allegedly was injured when he tripped and fell on a sidewalk in New Rochelle. The City of New Rochelle moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it had received no prior written notice of the defect as required by the City of New Rochelle Charter § 127A.

The City is entitled to summary judgment. A municipality which has enacted appropriate legislation may not be subject to liability for personal injuries resulting from a defective sidewalk unless it has received actual written notice of the dangerous condition, or its affirmative act of negligence proximately caused the accident (see, Amabile v City of Buffalo, 93 NY2d 471; Poirier v City of Schenectady, 85 NY2d 310, 313; Kominski v Village of Tarrytown, 218 AD2d 786; Ferris v...