Silva v. City of New York

• Decision Date: 18 April 2005
• Docket Number: 2002-10666.
• Citation: Silva v. City of New York, 17 AD3d 566, 793 NYS2d 478, 2005 NY Slip Op 3037 (N.Y. App. Div. 2005)
• Parties: BACILIO SILVA et al., Appellants, v. CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

17 A.D.3d 566

793 N.Y.S.2d 478

2005 NY Slip Op 03037

BACILIO SILVA et al., Appellants, v. CITY OF NEW YORK, Respondent.

2002-10666.

Appellate Division of the Supreme Court of the State of New York, Second Department.

April 18, 2005.

Motions by the appellants (1) for leave to reargue an appeal from a judgment of the Supreme Court, Kings County, dated September 6, 2002, which was determined by decision and order of this Court dated April 19, 2004 [6 AD3d 604], or, (2) for leave to appeal to the Court of Appeals from the decision and order of this Court.

Upon the papers filed in support of the motions and the papers filed in opposition thereto, it is

Ordered that the motion for leave to appeal to the Court of Appeals is denied; and it is further,

Ordered that the motion for leave to reargue is granted, and upon reargument, the decision and order of this Court dated April 19, 2004, is recalled and vacated, and the following decision and order is substituted therefor:

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Ruchelsman, J.), dated September 6, 2002, which, upon the granting of the defendant's oral application before trial to dismiss the complaint for failure to comply with the prior written notice provision of the Administrative Code of the City of New York § 7-201 (c) (2), dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The Supreme Court properly dismissed the plaintiffs' complaint. The plaintiffs failed to provide the City of New York with prior written notice of the defect which allegedly caused the accident (see Administrative Code of City of New York § 7-201 [c] [2]). Actual or constructive notice does not satisfy this requirement (see Amabile v City of Buffalo, 93 NY2d 471, 475-476 [1999]; Poirier v City of Schenectady, 85 NY2d 310, 314 [1995]; Harvey v Monteforte, 292 AD2d 420, 421 [2002]; Delcamp v Village of Brocton, 270 AD2d 842 [2000]). While there was written acknowledgment of the defect from the City which presents an exception to the written notice requirement (see Bruni v City of New York, 2 NY3d 319, 327 [2004]), the accident occurred within the grace period provided by the Administrative Code, which gives the city 15 days to repair or remove the defect (see Administrative Code § 7-201 [c] [2]).

The plaintiffs' reliance on another exception to the written notice requirement based on a condition caused by the...