| Lawler v City of Yonkers |
| 2007 NY Slip Op 09367 [45 AD3d 813] |
| November 27, 2007 |
| Appellate Division, Second Department |
| Bernadette A. Lawler, Appellant, v City of Yonkers,Respondent. |
—[*1] Frank J. Rubino, Yonkers, N.Y. (Rory McCormick of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Smith, J.), dated August 22, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when she tripped and fell on a public sidewalk fromwhich a rock was protruding. According to the plaintiff, the rock protrusion was surrounded by alumpy and uneven mass of asphalt. She commenced this action to recover damages against theCity of Yonkers, the municipal owner of the sidewalk.
The City made a prima facie showing of its entitlement to judgment as a matter of law bydemonstrating that it had no prior written notice of the allegedly defective sidewalk conditionthat caused the plaintiff's injuries (see General Municipal Law § 50-e [4]; SecondClass Cities Law § 244; Charter of the City of Yonkers § C24-11; Amabile vCity of Buffalo, 93 NY2d 471 [1999]; Jacobs v Village of Rockville Ctr., 41 AD3d 539, 540 [2007]; Giffords v Water Auth. of Great NeckN., 40 AD3d 695, 695-696 [2007]; Ferreira v County of Orange, 34 AD3d 724, 725 [2006]; Granderson v City of White Plains, 29AD3d 739 [2006]; Gold v Countyof Westchester, 15 AD3d 439, 440 [2005]). In opposition, the plaintiff failed to raise atriable issue of fact because she offered only speculation that the City affirmatively created thealleged sidewalk defect (see Delgado vCounty of Suffolk, 40 AD3d 575, 576 [2007]; Khemraj v City of New York, 37 AD3d 419, 420 [2007]; Ferreira v County of Orange, 34 AD3d724 [2006]; Hyland v City of New York, [*2]32AD3d 822, 823 [2006]; Gold v Countyof Westchester, 15 AD3d 439, 440 [2005]).
The plaintiff's contention that the alleged sidewalk defect constituted a public nuisance is notproperly before this Court as it was raised for the first time on appeal (see Matter of AIU Ins. Co. vRodriguez, 43 AD3d 1042 [2007]; Ferreira v County of Orange, 34 AD3d 724, 725 [2006]). Spolzino,J.P., Florio, Dillon and Angiolillo, JJ., concur.