Oser v. City of N.Y.

• Court: New York Supreme Court Appellate Division
• Citation: 133 A.D.3d 728,20 N.Y.S.3d 137
• Parties: Asher OSER, appellant, v. CITY OF NEW YORK, respondent.
• Decision Date: 18 November 2015

133 A.D.3d 728
20 N.Y.S.3d 137

Asher OSER, appellant,
v.
CITY OF NEW YORK, respondent.

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

Nov. 18, 2015.

20 N.Y.S.3d 137

Marcel Weisman, New York, N.Y. (Ezra Holczer of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Fay Ng of counsel), for respondent.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and SYLVIA O. HINDS–RADIX, JJ.

133 A.D.3d 728

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Jimenez–Salta, J.), dated July 30, 2014, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff allegedly sustained personal injuries when he was riding his bicycle in the bicycle lane of the Manhattan Bridge and came into contact with a metal expansion joint cover plate which was not flush with the surrounding surface. Thereafter, the plaintiff commenced this

20 N.Y.S.3d 138

action against the defendant City of New York. The City moved for summary judgment dismissing the complaint, contending that the condition at issue was not hazardous and that, in any event, it did not have prior written notice of the alleged defect. The Supreme Court granted the motion. We reverse.

Generally, the issue of whether a dangerous or defective condition exists depends on the facts of each case and is a question of fact for the jury (see generally Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489 ; Vigil v. City of New York, 110 A.D.3d 986, 973 N.Y.S.2d 750 ). In addition, "[a] municipality that has adopted a ‘prior written notice law’ cannot be held liable for a defect within the...