De Zapata v. City of N.Y.

172 A.D.3d 1306

101 N.Y.S.3d 151

Margarita Puello DE ZAPATA, Appellant,

v.CITY OF NEW YORK, Respondent, et al., Defendant.

2017–03033

Index No. 9526/14

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

Argued—January 17, 2019

May 29, 2019

Lipsig, Shapey, Manus & Moverman, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, N.Y. [Brian J. Isaac, Michael H. Zhu, and Jillian Rosen ], of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York, N.Y. (Jane L. Gordon and Melanie T. West of counsel), for respondent.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Lara J. Genovesi, J.), dated February 2, 2017. The order, insofar as appealed from, granted the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured on January 24, 2014, when she fell while walking on the sidewalk in front of premises located at 96 Hemlock Street in Brooklyn. By notice of claim dated April 16, 2014, the plaintiff asserted a claim against the City of New York to recover damages for physical injuries she sustained "as a result of falling upon hazardous and dangerous snow and ice ... that accumulated inside the broken and depressed surfaces of the sidewalk." On June 26, 2014, the plaintiff commenced this action against, among others, the City. The City moved for summary judgment dismissing the complaint insofar as asserted against it, contending, among other things, that it did not have prior written notice of the alleged defect that caused the plaintiff to fall and that it lacked constructive notice of any icy condition at the location of the accident. In support of the motion, the City submitted transcripts of the plaintiff's deposition testimony and General Municipal Law § 50–h hearing testimony, photographs of the accident

site, certified climatological data, and a map served upon the New York City Department of Transportation by the Big Apple Pothole & Sidewalk Protection Committee (hereinafter the Big Apple map) in 2003. The plaintiff testified that she fell while walking on the sidewalk in front of the premises located at 96 Hemlock Street when she stepped in a "hole" or "ditch" covered with ice. She identified the "ditch" on a photograph of the accident site. In opposition, the plaintiff contended that the Big Apple map constituted prior written notice of the defect and that the City had constructive notice of the ice, since the accident occurred three days after a snow storm and the temperature remained below freezing up until the date of the accident. By order dated February 2, 2017, the Supreme Court, inter alia, granted the City's motion.

Administrative Code of the City of New York § 7–201(c) "limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location" ( Katz v. City of New York, 87 N.Y.2d 241, 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374 ; see Gellman v. Cooke, 148 A.D.3d 1117, 1118, 51 N.Y.S.3d 549 ; Williams v. City of New York, 134 A.D.3d 809, 809, 20 N.Y.S.3d 628 ; Cendales v. City of New York, 25 A.D.3d 579, 580, 807 N.Y.S.2d 414 ). Accordingly, "prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City" ( Katz v. City of New York, 87 N.Y.2d at 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374 ; see Gellman v. Cooke, 148 A.D.3d at 1118, 51 N.Y.S.3d 549 ; Hyland v. City of New York, 32 A.D.3d 822, 823, 821 N.Y.S.2d 138 ; Estrada v. City of New York, 273 A.D.2d 194, 194, 709 N.Y.S.2d 105 ). "The only recognized exceptions to the prior written notice requirement involve situations in which either the municipality created the defect through an affirmative act of negligence, or a special use confers a special benefit upon the municipality" ( Puzhayeva v. City of New York, 151 A.D.3d 988, 990, 58 N.Y.S.3d 92 ; see 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 ). "Transitory conditions present on a roadway or walkway such as debris, oil, ice, or sand have been found to constitute potentially dangerous conditions for which prior written notice must be given before liability may be imposed upon a municipality" ( Farrell v. City of New York, 49 A.D.3d 806, 807, 854 N.Y.S.2d 470 ; see Min Whan Ock...