| Alvino v City of New York |
| 2008 NY Slip Op 02544 [49 AD3d 676] |
| March 18, 2008 |
| Appellate Division, Second Department |
| Christopher Alvino, Respondent, v City of New York,Appellant. |
—[*1] Bader Yakaitis & Nonnenmacher, LLP, New York, N.Y. (John J. Nonnenmacher and AdamJ. Stein of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals, as limited by itsbrief, from so much of an order of the Supreme Court, Kings County (Solomon, J.), datedNovember 9, 2006, as denied its cross motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendant's cross motion for summary judgment dismissing the complaint is granted.
The plaintiff commenced this action to recover damages from the defendant City of NewYork for injuries allegedly sustained when he stepped on a loose metal plate on the sidewalk andfell into a hole. The City cannot be held liable for a defect in a sidewalk unless, inter alia, itreceived written notice of the defect, or made a written acknowledgment of the condition, andfailed to remedy the condition within 15 days after the notification or acknowledgment (seeAdministrative Code of City of NY § 7-201 [c] [2]; Bruni v City of New York, 2 NY3d319, 324-326 [2004]). Here, while there was a written acknowledgment of the defect fromthe City, the accident occurred within the 15-day grace period (see Kruszka v City of New York, 29AD3d 742, 743 [2006]; Silva v Cityof New York, 17 AD3d 566, 567 [2005]).
In opposition to the City's prima facie showing of entitlement to judgment as a matter of law,the plaintiff failed to raise a triable issue of fact as to whether one of the exceptions to the [*2]prior notice requirement was applicable (see Amabile v City ofBuffalo, 93 NY2d 471 [1999]). There is no evidence that the City either created the defectivecondition or made special use of the area (see Oboler v City of New York, 8 NY3d 888, 889-890 [2007];Kruszka v City of New York, 29 AD3d at 743; Silva v City of New York, 17AD3d at 567).
Consequently, the Supreme Court should have granted the City's cross motion for summaryjudgment dismissing the complaint (see Kruszka v City of New York, 29 AD3d at 743;Silva v City of New York, 17 AD3d at 567). Mastro, J.P., Covello, Eng and Belen, JJ.,concur.