| Anderson v CD Fleetwood Assoc., LLC |
| 2011 NY Slip Op 01607 [82 AD3d 689] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Barbara Anderson, Respondent, v CD FleetwoodAssociates, LLC, Defendant, and City of Mount Vernon, Appellant. |
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In an action to recover damages for personal injuries, the defendant City of Mount Vernonappeals, as limited by its brief, from so much of an order of the Supreme Court, WestchesterCounty (Lefkowitz, J.), entered September 23, 2009, as denied that branch of its cross motionwhich was for summary judgment dismissing the complaint insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant City of Mount Vernon submitted evidence sufficient to establish, prima facie,that it did not have prior written notice of the alleged hole in the sidewalk which proximatelycaused the plaintiff to fall (see De LaReguera v City of Mount Vernon, 74 AD3d 1127 [2010]; Trinidad v City of Mount Vernon, 51AD3d 661 [2008]; Regan v City ofNew York, 8 AD3d 462 [2004]). However, in opposition to the City's cross motion forsummary judgment, the plaintiff raised a triable issue of fact as to whether the City affirmativelycreated the alleged defect by removing a parking meter from the sidewalk (see Cabrera v City of New York, 21AD3d 1047 [2005]).
The City's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied that branch of the City's cross motion whichwas for summary judgment dismissing the complaint insofar as asserted against it. Skelos, J.P.,Balkin, Leventhal and Hall, JJ., concur.