| Martinez v City of New York |
| 2013 NY Slip Op 02723 [105 AD3d 1013] |
| April 24, 2013 |
| Appellate Division, Second Department |
| Luis Martinez et al., Respondents, v City of NewYork, Appellant, and Verizon New York, Inc., Respondent, et al.,Defendants. |
—[*1] Zwirn & Saulino, P.C. (Thomas Torto, New York, N.Y., of counsel), forplaintiffs-respondents. Cullen and Dykman, LLP, New York, N.Y. (Kevin M. Walsh and Thomas J.Abernethy of counsel), for defendant-respondent.
In an action to recover damages for personal injuries, etc., the defendant City of NewYork appeals from so much of an order of the Supreme Court, Kings County (Schmidt,J.), dated January 31, 2012, as denied its motion for summary judgment dismissing thecomplaint and all cross claims insofar as asserted against it.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs tothe respondents appearing separately and filing separate briefs.
As the party moving for summary judgment, in order for the defendant City of NewYork to demonstrate its prima facie entitlement to judgment as a matter of law dismissingthe complaint and all cross claims insofar as asserted against it on the ground that it hadno prior written notice of the alleged defective or dangerous condition (seeAdministrative Code of City of NY § 7-201 [c]), it was required to submit proofthat it did not receive the notice required by the statute (see Smith v City of MountVernon, 101 AD3d 847 [2012]; Spanos v Town of Clarkstown, 81 AD3d 711, 712 [2011];Foley v County of Suffolk,80 AD3d 658, 659-660 [2011]; LiFrieri v Town of Smithtown, 72 AD3d 750, 752 [2010];Shannon v Village of RockvilleCtr., 39 AD3d 528, 529 [2007]). The City failed to submit any affidavit fromany city official or employee demonstrating that a search of the appropriate records hadbeen done and that there was no prior written notice of the alleged dangerous conditionthat caused the plaintiff's accident, and there was nothing in the deposition testimony ofthe three city witnesses that indicated that a search of the city records had been conductedwithout any success in finding any prior written notices. As such, the City failed to makea prima facie showing that no prior written notice was actually received (see Pangerl v Town of N.Hempstead, 76 AD3d 1001, 1002 [2010]; Reiser v Incorporated Vil. of Rockville Ctr., 70 AD3d 796,796-797 [2010]; McNeill v Cityof New York, 40 AD3d 823 [2007]).[*2]
Since the City failed to demonstrate a prima facieentitlement to judgment as a matter of law on the ground of lack of prior written notice,the Supreme Court properly denied its motion regardless of the sufficiency of theopposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]; Pampillonia vBurducea, 68 AD3d 1081, 1081-1082 [2009]; Zeitoune v Cohen, 66 AD3d889, 891 [2009]). Mastro, J.P., Rivera, Hall and Miller, JJ., concur.