Methal v. City of N.Y.

• Decision Date: 09 April 2014
• Citation: Methal v. City of N.Y., 2014 NY Slip Op 2414, 116 A.D.3d 743, 984 N.Y.S.2d 71 (N.Y. App. Div. 2014)
• Parties: Sharon METHAL, appellant, v. CITY OF NEW YORK, respondent, et al., defendant.
• Court: New York Supreme Court — Appellate Division

116 A.D.3d 743

984 N.Y.S.2d 71

2014 N.Y. Slip Op. 02414

Sharon METHAL, appellant,

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

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

April 9, 2014.

Herschel Kulefsky, New York, N.Y. (Ephrem J. Wertenteil of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Susan P. Greenberg of counsel), for respondent.

MARK C. DILLON, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated May 15, 2012, 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.

While crossing Avenue M near the intersection of East 15th Street in Brooklyn, the plaintiff allegedly was injured after she tripped and fell on a raised piece of asphalt located at a bus stop. After the completion of discovery, the defendant City of New York moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it had not received prior written notice of the alleged roadway defect ( see Administrative Code of City of N.Y. § 7–201[c][2] ). The Supreme Court granted the motion.

“Where, as here, a municipality has enacted a prior written notice statute, it may not be subject to liability for personal injuries caused by a defective street or sidewalk condition absent proof of prior written notice or an exception thereto” ( Laracuente v. City of New York, 104 A.D.3d 822, 822, 961 N.Y.S.2d 527;see Poirier v. City of Schenectady, 85 N.Y.2d 310, 313, 624 N.Y.S.2d 555, 648 N.E.2d 1318;Tallerico v. City of Peekskill, 114 A.D.3d 932, 980 N.Y.S.2d 842). “ ‘The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality’ ” ( Phillips v. City of New York, 107 A.D.3d 774, 775, 967 N.Y.S.2d 736, quoting Conner v. City of New York, 104 A.D.3d 637, 638, 960 N.Y.S.2d 204). The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition ( see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;Oboler v. City of New York, 8 N.Y.3d 888, 832 N.Y.S.2d 871, 864 N.E.2d 1270;Hirasawa v. City of Long Beach, 57 A.D.3d 846, 847–848, 870 N.Y.S.2d 96). The special use exception is “reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from [the] property unrelated to the public use” ( Poirier v. City of Schenectady, 85 N.Y.2d at 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318).

Here, the City established, prima facie, that it did not have prior written notice of the roadway defect upon which the plaintiff allegedly tripped and fell. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City...