Ocello v. City of N.Y.

• Court: New York Supreme Court — Appellate Division
• Citation: Ocello v. City of N.Y., 194 A.D.3d 828, 143 N.Y.S.3d 886(Mem) (N.Y. App. Div. 2021)
• Decision Date: 12 May 2021
• Docket Number: Index No. 10140/14,2019–05126
• Parties: Carlo OCELLO, appellant, v. CITY OF NEW YORK, et al., respondents.

194 A.D.3d 828

143 N.Y.S.3d 886 (Mem)

Carlo OCELLO, appellant,

v.CITY OF NEW YORK, et al., respondents.

2019–05126

Index No. 10140/14

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

Submitted—April 5, 2021

May 12, 2021

Krenstel & Guzman, LLP, New York, N.Y. (Marcia K. Raicus of counsel), for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Claude S. Platton, Susan Paulson, and Karlynne Fequiere of counsel), for respondent City of New York.

Gallo Vitucci Klar LLP, New York, N.Y. (Jessica A. Clark of counsel), for respondent Perfetto Contracting, Inc.

REINALDO E. RIVERA, J.P., BETSY BARROS, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Thomas P. Aliotta, J.), dated March 19, 2019. The order, insofar as appealed from, granted that branch of the motion of the defendant City of New York which was for summary judgment dismissing the complaint insofar as asserted against it and granted that branch of the motion of the defendant Perfetto Contracting, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

On May 17, 2014, at approximately 1:00 p.m., the plaintiff was crossing Wiman Avenue at its intersection with Russell Street in Staten Island, when his foot became stuck in a hole in the street, causing him to trip and fall and sustain injuries. Prior to the plaintiff's accident, the City of New York awarded a contract to Perfetto Contracting, Inc. (hereinafter Perfetto), to perform work in the area of Wiman Avenue. Perfetto performed its work, which involved replacing two sewer lines, from March 13, 2013, to March 21, 2013.

The plaintiff commenced this action to recover damages for personal injuries against the City and Perfetto. The City moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it, and Perfetto moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff opposed both motions. The Supreme Court granted both motions, and the plaintiff appeals.

"Where, as here, a municipality has enacted a prior written notice law, it may not be subjected to liability for injuries caused by a dangerous roadway condition unless it has received prior written notice of the dangerous condition, or an exception to the prior written notice requirement applies" ( Phillips v. City of New York, 107 A.D.3d 774, 774, 967 N.Y.S.2d 736 ; see Budoff v. City of New York, 164 A.D.3d 737, 739, 83 N.Y.S.3d 163 ; Conner v. City of New York, 104 A.D.3d 637, 960 N.Y.S.2d 204 ). "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" ( Conner v. City of New York, 104 A.D.3d at 638, 960 N.Y.S.2d 204 ; see Budoff v. City of New York, 164 A.D.3d at 739, 83 N.Y.S.3d 163 ).

Here, the City established its prima facie entitlement to judgment as a matter of law by demonstrating that it had not received prior written notice of the condition that allegedly caused the plaintiff's injuries (see Budoff v. City of New York, 164 A.D.3d at 739, 83 N.Y.S.3d 163 ; Conner v. City of New York, 104 A.D.3d at 638, 960 N.Y.S.2d 204 ; Phillips v. City of New York, 107 A.D.3d at 775, 967 N.Y.S.2d 736 ). In opposition, the plaintiff failed to raise a triable issue of fact as to whether...