Wald v. City of N.Y.

• Decision Date: 26 March 2014
• Citation: Wald v. N.Y.C., 2014 NY Slip Op 2035, 115 A.D.3d 939, 982 N.Y.S.2d 534 (N.Y. App. Div. 2014)
• Parties: Rella WALD, et al., appellants, v. CITY OF NEW YORK, respondent.
• Court: New York Supreme Court — Appellate Division

115 A.D.3d 939

982 N.Y.S.2d 534

2014 N.Y. Slip Op. 02035

Rella WALD, et al., appellants,

v.CITY OF NEW YORK, respondent.

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

March 26, 2014.

Shoshana T. Bookson (Pollack, Pollack, Isaac & De Cicco, LLP, New York, N.Y. [Brian J. Isaac], of counsel), for appellants.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A. Colley of counsel; Johanna Zacarias on the brief), for respondent.

WILLIAM F. MASTRO, J.P., PLUMMER E. LOTT, LEONARD B. AUSTIN, and SYLVIA O. HINDS–RADIX, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kerrigan, J.), dated August 14, 2012, as granted the defendant's motion for summary judgment dismissing the complaint.

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

On June 25, 2009, the injured plaintiff tripped when she stepped into a hole in a roadway in Queens while attempting to cross the street. The injured plaintiff and her husband served a notice of claim upon the defendant, City of New York. Thereafter, the injured plaintiff, and her husband suing derivatively, commenced this action against the City to recover damages for her personal injuries, alleging that the City was negligent in, inter alia, creating the subject defect. They alleged in their verified bill of particulars that the subject condition was “an extended section of defective and dangerous roadway which was broken, depressed, uneven and constituted a trap and hazard.”

The City moved for summary judgment dismissing the complaint, and the plaintiffs cross-moved to amend their notice of claim and complaint to allege compliance with the prior written notice requirement of section 7–201(c) of the Administrative Code of the City of New York. As relevant to this appeal, the Supreme Court granted the City's motion for summary judgment dismissing the complaint.

“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 Martinez v. City of New York, 105 A.D.3d 1013, 1014, 963 N.Y.S.2d 391;Conner v. City of New York, 104 A.D.3d 637, 638, 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 Oboler v. City of New York, 8 N.Y.3d 888, 889–890, 832 N.Y.S.2d 871, 864 N.E.2d 1270;Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Ryan v. City of New York, 84 A.D.3d 926, 927, 923 N.Y.S.2d 153;Alvino v. City of New York, 49 A.D.3d 676, 677, 853 N.Y.S.2d 666). “Additionally, the affirmative negligence exception ‘is limited to work by the City that immediately results in the existence of a dangerous condition’ ” ( Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873, quoting Oboler v. City of New York, 8 N.Y.3d at 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270;see Laracuente v. City of New York, 104 A.D.3d 822, 822, 961 N.Y.S.2d 527).

The prima facie showing that a defendant must make on a motion for summary judgment is governed by the allegations of liability made by the plaintiffs in the pleadings ( see Carlucci v. Village of Scarsdale, 104 A.D.3d 797, 798, 961 N.Y.S.2d 318;Foster v. Herbert Slepoy Corp., 76 A.D.3d 210, 214, 905 N.Y.S.2d 226). Since the plaintiffs alleged in their complaint that the City created the alleged defect, the City was obligated to establish, as part of its prima facie showing, both that it did not receive prior written notice of the alleged defect, and that it did not create the alleged defect through an affirmative act of...