| Perez v City of New York |
| 2014 NY Slip Op 02914 [116 AD3d 1019] |
| April 30, 2014 |
| Appellate Division, Second Department |
| Freddie Perez, Appellant, v City of New York,Respondent. |
—[*1] Zachary W. Carter, Corporation Counsel, New York, N.Y. (Edward F.X. Hart andDrake A. Colley of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Ash, J.), dated January 24, 2013, whichgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when he fell after stepping off a sidewalk andonto a sunken portion of a roadway in Brooklyn. The plaintiff subsequently served anotice of claim upon the defendant, and thereafter commenced this action against thedefendant to recover damages for personal injuries. The defendant moved for summaryjudgment dismissing the complaint on the grounds, inter alia, that it did not receive priorwritten notice of the alleged defective condition as required by section 7-201 (c) of theAdministrative Code of the City of New York. The Supreme Court granted the motion.
"A municipality that has adopted a 'prior written notice law' cannot be held liable fora defect within the scope of the law absent the requisite written notice, unless anexception to the requirement applies" (Abano v Suffolk County Community Coll., 66 AD3d 719,719 [2009]; see Donnellan vCity of New York, 112 AD3d 780 [2013]; Albano v Suffolk County, 99 AD3d 741 [2012]). "Theonly two recognized exceptions to a prior written notice requirement are themunicipality's affirmative creation of a defect or where the defect is created by themunicipality's special use of the property" (Forbes v City of New York, 85 AD3d 1106, 1107 [2011];see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]; Hanover Ins. Co. v Town ofPawling, 94 AD3d 1055 [2012]; Filaski-Fitzgerald v Town of Huntington, 18 AD3d 603,604 [2005]). If one of these two recognized exceptions applies, the written noticerequirement is obviated (seeGroninger v Village of Mamaroneck, 17 NY3d 125, 127 [2011]).
The defendant established its prima facie entitlement to judgment as a matter of lawby demonstrating that it did not have prior written notice of the alleged defectivecondition, as required by section 7-201 (c) of the Administrative Code of the City ofNew York (see Groninger v Village of Mamaroneck, 17 NY3d at 125; Conner v City of New York,104 AD3d 637 [2013]; Albano v Suffolk County, 99 AD3d 741 [2012]; cf. Bruni v City of New York,2 NY3d 319 [2004]), and that it did not [*2]affirmatively create the alleged defective condition (seeGruska v City of New York, 292 AD2d 498 [2002]; Elstein v City of NewYork, 209 AD2d 186 [1994]). The plaintiff did not allege that the subject conditionwas created by the defendant's special use of the roadway and, as such, the defendant wasnot required to address this exception.
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff reliedprincipally upon the affidavit of his expert engineer. Contrary to the plaintiff's assertions,this affidavit did not raise a triable issue of fact as to whether the defendant created thealleged defective condition, because the conclusions set forth by his expert were notsupported by empirical data or any relevant construction practices or industry standards.Moreover, the expert's affidavit failed to explain how he reached the conclusion that thealleged defective condition was created by work performed by the defendant (seeRomano v Stanley, 90 NY2d 444 [1997]; Bohan v F.R.P. Sheet Metal Contr. Corp., 58 AD3d 781[2009]; Delgado v County ofSuffolk, 40 AD3d 575, 576 [2007]).
Accordingly, the Supreme Court properly granted the defendant's motion forsummary judgment dismissing the complaint. Mastro, J.P., Hall, Austin, Sgroi and Duffy,JJ., concur.