| Gruenfeld v City of New Rochelle |
| 2010 NY Slip Op 03411 [72 AD3d 1025] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Helen Gruenfeld et al., Respondents, v City of NewRochelle, Appellant, and New Rochelle YMCA, Respondent. |
—[*1] Daniel A. Kalish, White Plains, N.Y., for plaintiffs-respondents. O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains, N.Y. (Montgomery L.Effinger of counsel), for defendant-respondent.
In an action to recover damages for personal injuries, etc., the defendant City of NewRochelle appeals from an order of the Supreme Court, Westchester County (Smith, J.), datedFebruary 18, 2009, which denied, as premature, its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it, without prejudice to renewalfollowing the completion of discovery.
Ordered that the order is affirmed, with one bill of costs payable to the respondentsappearing separately and filing separate briefs.
The plaintiff Helen Gruenfeld (hereinafter the plaintiff) allegedly tripped and fell as a resultof stepping into a depression located in the sidewalk on Bayard Street in the City of NewRochelle. Thereafter, the plaintiff and her husband, suing derivatively, commenced the presentaction, naming as defendants the City of New Rochelle and New Rochelle YMCA (hereinafterYMCA), the abutting property owner. The City moved for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it on the grounds, among others, that itnever received prior written notice of the alleged defect, as required by New Rochelle CityCharter, article XII, § 127A, and that none of the exceptions to the prior written noticerequirement applied. Given that no discovery had yet been conducted, the Supreme Court deniedthe City's motion as premature, without prejudice to renewal following the completion ofdiscovery. We affirm.
The Supreme Court correctly determined that the plaintiffs and the YMCA should have beenafforded an opportunity to conduct discovery prior to the award of summary judgment in favorof any of the parties (see CPLR 3212 [f]; Elliot v County of Nassau, 53 AD3d 561, 563 [2008]). Mastro,J.P., Fisher, Belen and Austin, JJ., concur.