Phillips v. City of N.Y.

• Decision Date: 12 June 2013
• Citation: Phillips v. City of N.Y., 107 A.D.3d 774, 967 N.Y.S.2d 736, 2013 N.Y. Slip Op. 4319 (N.Y. App. Div. 2013)
• Parties: Josefina PHILLIPS, appellant, v. CITY OF NEW YORK, respondent.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 774

967 N.Y.S.2d 736

2013 N.Y. Slip Op. 04319

Josefina PHILLIPS, appellant,

v.CITY OF NEW YORK, respondent.

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

June 12, 2013.

Jonah Grossman, Jamaica, N.Y. (Lawrence B. Lame of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Francis F. Caputo, Margaret G. King, and Elliott M. Davis of counsel), for respondent.

PETER B. SKELOS, J.P., DANIEL D. ANGIOLILLO, SHERI S. ROMAN, and SYLVIA HINDS–RADIX, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Flug, J.), dated January 6, 2011, which granted the defendant's motion for summary judgment dismissing the complaint, and denied, as academic, her motion to restore the case to the trial calendar, and (2) an order of the same court entered August 8, 2011, which denied her motion for leave to renew and reargue.

ORDERED that the order dated January 6, 2011, is affirmed; and it is further,

ORDERED that the appeal from so much of the order entered August 8, 2011, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order entered August 8, 2011, is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the defendant.

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 ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77, 715 N.E.2d 104;Conner v. City of New York, 104 A.D.3d 637, 960 N.Y.S.2d 204;Pennamen v. Town of Babylon, 86 A.D.3d 599, 927 N.Y.S.2d 164).“ 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 637, 960 N.Y.S.2d 204;see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Poirier v. City of Schenectady, 85 N.Y.2d 310, 314–315, 624 N.Y.S.2d 555, 648 N.E.2d 1318;De La Reguera v. City of Mount Vernon, 74 A.D.3d 1127, 904 N.Y.S.2d 108).

Here, the defendant established its prima facie entitlement to judgment as a matter of law by presenting evidence that it had not received prior written notice of the condition that allegedly caused the plaintiff's injuries ( see Conner v. City of New York, 104 A.D.3d 637, 960 N.Y.S.2d 204;Laracuente v. City of New York, 104 A.D.3d 822, 961 N.Y.S.2d 527;Boggi v. City of White Plains, 97 A.D.3d 773, 948 N.Y.S.2d 562). In opposition, the plaintiff failed to raise a triable issue of fact as...