Parker v. City of Yonkers

212 A.D.3d 643

179 N.Y.S.3d 615 (Mem)

Danielle PARKER, appellant,

v.CITY OF YONKERS, et al., respondents, et al., defendants.

2020–04826

Index No. 65342/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 18, 2022

January 11, 2023

Raneri, Light & O'Dell, PLLC, White Plains, NY (Kevin D. O'Dell of counsel), for appellant.

Matthew I. Gallagher, Corporation Counsel, Yonkers, NY (Rachel G. Kravitz and David Redmond of counsel), for respondents.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Terry Jane Ruderman, J.), dated June 11, 2020. The order granted the motion of the defendants City of Yonkers, Yonkers Department of Public Works, Yonkers Department of Parks, Recreation, and Conservation, and Yonkers Shade Tree Division for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

In September 2016, the plaintiff allegedly sustained personal injuries when she tripped and fell in Yonkers on a sidewalk slab that was raised by tree roots from an adjacent tree. The plaintiff commenced this action against, among others, the defendants City of Yonkers, Yonkers Department of Public Works, Yonkers Department of Parks, Recreation, and Conservation, and Yonkers Shade Tree Division (hereinafter collectively the Yonkers defendants).

After discovery was complete, the Yonkers defendants moved for summary judgment dismissing the complaint insofar as asserted against them on the ground, among others, that they did not receive prior written notice of the sidewalk condition alleged, as required by section C24–11 of the Charter of the City of Yonkers. The Supreme Court granted the motion, and the plaintiff appeals.

In support of their motion, the Yonkers defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they did not receive prior written notice of the sidewalk condition that allegedly caused the plaintiff's accident, as required by section C24–11 of the Charter of the City of Yonkers. The burden thereby shifted to the plaintiff to demonstrate either that a triable issue of fact existed in that regard or that one of the two recognized exceptions to the prior written notice law applied (see Groninger v. Village of Mamaroneck, 17 N.Y.3d 125, 129, 927 N.Y.S.2d 304, 950 N.E.2d 908 ; Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 ; Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Smith v. City of New York, 210 A.D.3d 53, 69, 175 N.Y.S.3d 529 ). Contrary to the plaintiff's contention, any evidence that the Yonkers defendants might have had actual or constructive notice of the alleged sidewalk condition prior to the accident did not override the statutory requirement of prior written notice here (see Amabile v....