| Melendez v City of New York |
| 2010 NY Slip Op 03293 [72 AD3d 913] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Rigoberto Melendez, Appellant, v City of New York et al.,Respondents, et al., Defendant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath andVictoria Scalzo of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of a judgment of the Supreme Court, Queens County (Kelly, J.), enteredJanuary 28, 2009, as, upon the granting of the motion of the defendants City of New York,Department of Environmental Protection, Bureau of Water Energy and Conservation, and NewYork State Housing Preservation and Development Corp. pursuant to CPLR 4401, made at theclose of evidence, for judgment as a matter of law for the plaintiff's failure to establish a primafacie case, is in favor of those defendants and against him dismissing the complaint insofar asasserted against them.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
The plaintiff tripped and fell over a manhole cover, which had been placed in an opening inthe sidewalk, in an inverted manner, such that protruding structures on the bottom of the coverfaced upward on the sidewalk.
At trial, the plaintiff failed to establish compliance with the applicable prior written noticelaw, Administrative Code of the City of New York § 7-201. Moreover, upon the evidencepresented at trial, there exists no valid line of reasoning and permissible inferences (see Tapia v Dattco, Inc., 32 AD3d842 [2006]) which could possibly have led rational individuals to conclude that therespondents created the defect through an affirmative act of negligence, or that the manholecover constituted a "special use" which conferred a special benefit upon the locality (see Oboler v City of New York, 8NY3d 888, 889 [2007]; Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Ramos v City of New York, 55 AD3d896 [2008]). Accordingly, the Supreme Court properly granted the respondents' motionpursuant to CPLR 4401. Fisher, J.P., Covello, Lott and Sgroi, JJ., concur.