| Pena v City of Yonkers |
| 2011 NY Slip Op 01632 [82 AD3d 728] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Jasmin Pena, an Infant, by Her Mother and Natural Guardian,Elizabeth Forestier, et al., Respondents, v City of Yonkers,Appellant. |
—[*1] Scott Baron & Associates, P.C., Howard Beach, N.Y. (W. Bradford Bernadt of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Westchester County (Bellantoni, J.), entered January 12, 2010,which denied its motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
The infant plaintiff allegedly was injured when her right foot came into contact with a pieceof metal protruding from the grassy area of a public sidewalk.
The defendant, City of Yonkers, established its prima facie entitlement to judgment as amatter of law by submitting evidence sufficient to demonstrate that it did not have prior writtennotice of the alleged defect (see Charter of City of Yonkers § C24-11; Lawler v City of Yonkers, 45 AD3d813 [2007]; Rochford v City ofYonkers, 12 AD3d 433 [2004]). In opposition, the plaintiffs failed to raise a triable issueof fact because they offered only speculation that the defendant created the alleged defect (see Patti v Town of N. Hempstead, 23AD3d 362 [2005]; Regan v City ofNew York, 8 AD3d 462 [2004]). Accordingly, the Supreme Court should have grantedthe defendant's motion for summary judgment dismissing the complaint. Covello, J.P.,Chambers, Lott and Cohen, JJ., concur.