Forbes v. City of N.Y.

• Decision Date: 28 June 2011
• Citation: Forbes v. City of N.Y., 85 A.D.3d 1106, 926 N.Y.S.2d 309, 2011 N.Y. Slip Op. 5661 (N.Y. App. Div. 2011)
• Parties: Judith FORBES, appellant,v.CITY OF NEW YORK, respondent, et al., defendant.
• Court: New York Supreme Court — Appellate Division

85 A.D.3d 1106

926 N.Y.S.2d 309

2011 N.Y. Slip Op. 05661

Judith FORBES, appellant,

v.CITY OF NEW YORK, respondent, et al., defendant.

Supreme Court, Appellate Division, Second Department, New York.

June 28, 2011.

OPINION TEXT STARTS HERERappaport, Glass, Greene & Levine, LLP, New York, N.Y. (James L. Forde of counsel), for appellant.Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Kristin M. Helmers and Deborah A. Brenner of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Sherman, J.), dated September 30, 2010, which granted the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

The plaintiff alleges that she was injured when she slipped and fell as a result of a defective condition on a sidewalk in Brooklyn. A municipality that has adopted a “prior written notice law” cannot be held liable for a defect within the scope of the law absent the requisite written notice, unless an exception to the requirement applies ( see Poirier v. City of Schenectady, 85 N.Y.2d 310, 624 N.Y.S.2d 555, 648 N.E.2d 1318; Abano v. Suffolk County Community Coll., 66 A.D.3d 719, 887 N.Y.S.2d 200; Katsoudas v. City of New York, 29 A.D.3d 740, 741, 815 N.Y.S.2d 243). It is undisputed that the defendant City of New York never received prior written notice of the alleged dangerous condition. The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104; Filaski–Fizgerald v. Town of Huntington, 18 A.D.3d 603, 604, 795 N.Y.S.2d 614). Moreover, the “ ‘affirmative negligence exception ... [is] limited to work by the [municipality] that immediately results in the existence of a dangerous condition’ ” ( Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270, quoting Bielecki v. City of New York, 14 A.D.3d 301, 301, 788 N.Y.S.2d 67).

Here, the City established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the alleged dangerous condition as required by the Administrative Code of the City of New York ( see Administrative Code of City of N.Y. § 7–201[c][2]; Almodovar v. City of New York, 240 A.D.2d 523, 658...