| Burwell v City of New York |
| 2012 NY Slip Op 05489 [97 AD3d 617] |
| July 11, 2012 |
| Appellate Division, Second Department |
| Ethel M. Burwell, Respondent, et al., Plaintiff, v City ofNew York, Respondent-Appellant, and Subway et al., Appellants-Respondents, et al.,Defendant. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath andVictoria Scalzo of counsel), for respondent-appellant. Pops & Associates, New York, N.Y. (Paul R. Pops, Joseph Vallette, and GlennR. Marshall of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the defendants Subway, ShmuelZeevi, also known as Sam Zeevi, Odelia Zeevi, Paul Brenner, and Jeanette Nardi, also known asJeantette Nardi, appeal, as limited by their brief, from so much of an order of the Supreme Court,Kings County (Velasquez, J.), dated October 7, 2010, as denied their motion for summaryjudgment dismissing the complaint and all cross claims insofar as asserted against them, and thedefendant City of New York cross-appeals, as limited by its brief, from so much of the sameorder as denied its cross motion for summary judgment dismissing the complaint and all crossclaims insofar as asserted against it.
Ordered that the order is reversed insofar as appealed from, on the law, and the motion of thedefendants Subway, Shmuel Zeevi, also known as Sam Zeevi, Odelia Zeevi, Paul Brenner, andJeanette Nardi, also known as Jeantette Nardi, for summary judgment dismissing the complaintand all cross claims insofar as asserted against them is granted; and it is further,
Ordered that the order is affirmed insofar as cross-appealed from; and it is further,
Ordered that one bill of costs is awarded to the defendants Subway, Shmuel Zeevi, alsoknown as Sam Zeevi, Odelia Zeevi, Paul Brenner, and Jeanette Nardi, also known as JeantetteNardi, payable by the plaintiff, and one bill of costs is awarded to the plaintiff, payable by thedefendant City of New York.
On November 6, 2003, the plaintiff allegedly sustained personal injuries when her vehiclestruck the protruding base of a fire hydrant as she drove over a sidewalk while attempting toenter the parking lot of commercial premises owned by the defendants Shmuel Zeevi, also known[*2]as Sam Zeevi, Odelia Zeevi, Paul Brenner, and JeanetteNardi, also known as Jeantette Nardi (hereinafter collectively the property owners), and leased tothe defendant Subway. She subsequently commenced this action against the property owners,Subway, and the City of New York, among others, alleging, among other things, that the severaldefendants negligently maintained the curb, sidewalk, and hydrant in violation of AdministrativeCode of the City of New York §§ 7-210 and 19-152. Specifically, the plaintiffalleged that the defendants negligently permitted the curb of the sidewalk to deteriorate to suchan extent that it provided no barrier between the sidewalk flagstone and the roadway, and thatthey permitted the broken hydrant to obstruct the normal flow of traffic into and out of theparking lot.
The property owners and Subway made a prima facie showing of their entitlement tojudgment as a matter of law dismissing the complaint and all cross claims insofar as assertedagainst them through the submission of the transcript of the plaintiff's deposition testimony,which demonstrated that the alleged deterioration of the curb was not a proximate cause of theaccident (see Rick v DiFusco, 69AD3d 603 [2010]). The property owners and Subway also established that they had no dutyto maintain or repair the hydrant. In opposition, the plaintiff and the City failed to raise a triableissue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).Accordingly, the Supreme Court should have granted the motion of the property owners andSubway for summary judgment dismissing the complaint and all cross claims insofar as assertedagainst them.
Nevertheless, the Supreme Court properly denied the City's motion for summary judgmentdismissing the complaint and all cross claims insofar as against it. Subject to two exceptionswhich we need not address in connection with this appeal, where a municipality has enacted aprior written notice statute such as Administrative Code of the City of New York § 7-201(c) (2), it may not be subjected to liability for injuries arising from a defective roadway unless ithas received timely prior written notice of the defective condition (see De La Reguera v City of MountVernon, 74 AD3d 1127 [2010]; Griesbeck v County of Suffolk, 44 AD3d 618, 619 [2007]; Lopez v G&J Rudolph Inc., 20 AD3d511, 512 [2005]).
Here, a map prepared by the Big Apple Pothole and Sidewalk Protection Corporation, whichwas submitted by the City in support of its motion, reflects prior written notice to the City of an"obstruction protruding from the sidewalk" in the vicinity of the plaintiff's accident. Accordingly,contrary to the City's contention, it failed to establish its prima facie entitlement to judgment as amatter of law by providing evidence that it did not have prior written notice of the allegeddefective condition of the fire hydrant, as required by the Administrative Code of the City ofNew York (cf. Daniels v City of NewYork, 91 AD3d 699, 700-701 [2012]; Forbes v City of New York, 85 AD3d 1106, 1107 [2011]; Marshall v City of New York, 52AD3d 586 [2008]). Since the City failed to meet its prima facie burden, and its cross motionwas premised solely on the absence of prior written notice, the cross motion for summaryjudgment was properly denied regardless of the sufficiency of the opposing papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Amendola v City of New York, 89AD3d 775, 776 [2011]). Rivera, J.P., Eng, Lott and Cohen, JJ., concur.