Criss v. City of Ithaca

• Citation: 654 N.Y.S.2d 879,237 A.D.2d 860
• Parties: Martha R. CRISS et al., Respondents, v. CITY OF ITHACA, Appellant, et al., Defendant.
• Decision Date: 20 March 1997
• Court: New York Supreme Court — Appellate Division

Page 879

654 N.Y.S.2d 879

237 A.D.2d 860

Martha R. CRISS et al., Respondents, v. CITY OF ITHACA, Appellant, et al., Defendant.

Supreme Court, Appellate Division Third Department.

March 20, 1997.

Levene, Gouldin & Thompson (Cynthia Ann K. Manchester, of counsel), Binghamton, for appellant.

Hines & Allen (Joseph W. Allen, of counsel), Ithaca, for Martha R. Criss and another, respondents.

Before MIKOLL, J.P., and MERCURE, CREW, WHITE and YESAWICH, JJ.

MERCURE, Justice.

Appeal from an order of the Supreme Court (Relihan Jr., J.), entered May 3, 1996 in Tompkins County, which, inter alia, denied defendant City of Ithaca's motion for summary judgment dismissing the complaint.

Plaintiff Martha R. Criss (hereinafter plaintiff) was injured on North Cayuga Street in the City of Ithaca, Tompkins County, when she allegedly tripped on a raised grating owned and maintained by defendant New York State Electric and Gas Corporation which protruded from the sidewalk owned and maintained by defendant City of Ithaca. Thereafter, plaintiff and her husband commenced this action seeking damages for her personal injuries. Following joinder of issue, the City moved for summary judgment dismissing the complaint against it based on the lack of prior written notice of the alleged defective condition, a prerequisite for imposing civil liability against it under Ithaca City Charter § C-107 (as amended by Local Laws, 1989, No. 2 of City of Ithaca), and on the ground that there was no evidence that the City's acts or omissions caused or contributed to plaintiff's injuries. Supreme Court denied the motion insofar as it sought to dismiss the complaint and the City now appeals.

Plaintiffs' claim, based upon the City's failure to keep the sidewalk in a safe condition, was subject to the City's prior notice law, which requires written notice as a prerequisite to imposing liability arising out of "damage or injury sustained by any person in consequence of any * * * sidewalk * * * being out of repair, unsafe, [or] dangerous". The City demonstrated its right to judgment as a matter of law by proving that it had not received prior written notice of the defective condition which allegedly caused plaintiff's injuries (see, Boucher v. Town of Candor, 234 A.D.2d 669, 649 N.Y.S.2d 959; Horan v. Christ Episcopal Church, 227 A.D.2d 592, 643 N.Y.S.2d 202). Plaintiffs, however, failed to rebut this showing by providing sufficient evidence to raise a triable issue of fact as to whether the City had prior written notice. Furthermore, in the absence of any evidence that the City had inspected the area or performed repair work on the...