Vega v. 103 Thayer St., LLC

• Decision Date: 02 April 2013
• Citation: 961 N.Y.S.2d 467,105 A.D.3d 405,2013 N.Y. Slip Op. 02169
• Parties: Ana VEGA, Plaintiff–Appellant, v. 103 THAYER STREET, LLC, Defendant, The City of New York, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 405
961 N.Y.S.2d 467
2013 N.Y. Slip Op. 02169

Ana VEGA, Plaintiff–Appellant,
v.
103 THAYER STREET, LLC, Defendant,
The City of New York, Defendant–Respondent.

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

April 2, 2013.

[961 N.Y.S.2d 468]

Levine and Wiss, PLLC, Mineola (Anthony A. Ferrante of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.

ANDRIAS, J.P., SWEENY, FREEDMAN, FEINMAN, GISCHE, JJ.

[105 A.D.3d 405]Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered on or about June 23, 2011, which, to the extent appealed from, granted defendant City's cross motion for summary judgment dismissing the complaint, and order, same court and Justice, entered January 17, 2012, which, upon reargument, adhered to the original determination, reversed, on the law, without costs, and the City's cross motion denied.

In this personal injury action, plaintiff alleges that she tripped and fell as a result of a hole in a pedestrian ramp. The City failed to make a prima facie showing of entitlement to judgment as a matter of law, because the markings on the Big Apple map it submitted in support of its cross motion raise an issue of fact as to whether it had prior written notice of the alleged defect ( see Cruzado v. City of New York, 80 A.D.3d 537, 538, 915 N.Y.S.2d 548 [1st Dept. 2011]; Burwell v. City of New York, 97 A.D.3d 617, 618–619, 948 N.Y.S.2d 401 [2d Dept. 2012], lv. denied20 N.Y.3d 860, 2013 N.Y. Slip Op. 64878, 2013 WL 599577 [2013] ).

All concur except Andrias, J.P. and FREEDMAN, J. who dissent in a memorandum by ANDRIAS, J.P. as follows:

ANDRIAS J.P. (dissenting).

Plaintiff seeks to recover for personal injuries she allegedly sustained when she tripped and fell as a result of a hole on the pedestrian ramp located at the northeast corner of Broadway and Thayer Street. The City moved for summary judgment on the ground that plaintiff could not prove prior written notice to the City as required under Administrative Code of the City of New York § 7–201(c)(2) because the Big Apple map received by the Department of Transportation [105 A.D.3d 406]on October 23, 2003 did not indicate the specific marking (a circle) for a “hole or other hazardous depression” at the location of the accident. Supreme Court granted the motion and, upon reargument, adhered to its original determination.

The majority would reverse on the ground that the City failed to make a...