| Daniels v City of New York |
| 2012 NY Slip Op 00322 [91 AD3d 699] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Schandles McKeithen Daniels, Respondent, v City of NewYork, Appellant, et al., Defendants. |
—[*1] Arlene McCrea, Brooklyn, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant City of New Yorkappeals (1) from an order of the Supreme Court, Kings County (Velasquez, J.), dated January 7,2010, which denied its motion for summary judgment dismissing the complaint insofar asasserted against it and (2), as limited by its brief, from so much of an order of the same courtdated September 8, 2010, as, upon reargument, adhered to the original determination.
Ordered that the appeal from the order dated January 7, 2010, is dismissed, as that order wassuperseded by the order dated September 8, 2010, made upon reargument; and it is further,
Ordered that the order dated September 8, 2010, is reversed insofar as appealed from, on thelaw, and upon reargument, the order dated January 7, 2010, is vacated, and the motion of thedefendant City of New York for summary judgment dismissing the complaint insofar as assertedagainst it is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant City of New York.
The plaintiff alleged that she fell on a "sunken and uneven portion of the crosswalk/roadway"while crossing the southbound traffic lanes of Court Street in the northern crosswalk at theintersection of Court Street and Montague Street in Brooklyn. The map filed with the Departmentof Transportation by the Big Apple Pothole and Sidewalk Protection Corporation included twonotations near that area, containing the map's symbol for "[e]xtended section of broken,misaligned, or uneven curb." It also included a notation indicating a "[p]othole or other hazard"in the portion of the northern crosswalk that traversed the northbound traffic lanes. There was nonotation indicating any crosswalk or roadway hazard on the portion of the northern crosswalkthat traversed the southbound traffic lanes.
"Administrative Code of the City of New York § 7-201 (c) limits the City's duty ofcare over municipal streets and sidewalks by imposing liability only for those defects. . . which its [*2]officials have been actuallynotified exist at a specified location" (Katz v City of New York, 87 NY2d 241, 243[1995]). Prior written notice of a defect is a condition precedent which a plaintiff is required toplead and prove to maintain an action against the City (see Katz v City of New York, 87NY2d at 243; Poirier v City of Schenectady, 85 NY2d 310, 313 [1995]; Barry vNiagara Frontier Tr. Sys., 35 NY2d 629, 633 [1974]).
The City established its prima facie entitlement to judgment as a matter of law bydemonstrating that it did not have written notice of the alleged defect in the sidewalk at thelocation where the plaintiff allegedly fell and that it did not create the allegedly defectivecondition. None of the defects shown on the Big Apple map was the one on which the plaintiff'sclaim was based, and, therefore the map did not give the City written notice of the defect. Inopposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the City was entitled tosummary judgment dismissing the complaint insofar as asserted against it (see D'Onofrio v City of New York, 11NY3d 581, 585 [2008]; Roldan vCity of New York, 36 AD3d 484 [2007]; Waner v City of New York, 5 AD3d 288 [2004]; Camacho vCity of New York, 218 AD2d 725, 726 [1995]). Rivera, J.P., Roman, Sgroi and Cohen, JJ.,concur.