CORREA v. The City of New York, Defendant–Respondent. (2021)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on or about December 5, 2019, which granted defendant City of New York's motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The motion court properly granted the City of New York's motion for summary judgment.  Plaintiff's notice of claim, 50–h testimony, complaint, and verified bill of particulars alleged that she was injured when she tripped and fell on an “uneven, cracked, broken manhole” cover.  For the first time in her opposition papers, plaintiff claimed that an unleveled and cracked sidewalk caused the trip-and-fall accident.  Since plaintiff did not amend her complaint, the court properly declined to consider the new allegation (see Harrington v. City of Plattsburgh, 216 A.D.2d 724, 724–725, 627 N.Y.S.2d 838 [3d Dept. 1995]).

The City established its prima facie entitlement to summary judgment by establishing that it lacked prior written notice of the alleged defective condition of the manhole cover, which is a condition precedent to liability for personal injuries sustained as a result of alleged roadway defects (see Administrative Code of City of N.Y. § 7–201[c][2];  Jones v. City of New York, 159 A.D.3d 571, 571–572, 70 N.Y.S.3d 45 [1st Dept. 2018]).  The record is silent as to any written notice of a defective or depressed manhole cover at the location where the accident is alleged to have occurred (see D'Onofrio v. City of New York, 11 N.Y.3d 581, 584–585, 873 N.Y.S.2d 251, 901 N.E.2d 744 [2008]).

Plaintiff failed to meet its burden to demonstrate that a question of fact existed regarding the City's receipt of prior written notice, or that an exception to the notice requirement applied (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008];  Oboler v. City of New York, 8 N.Y.3d 888, 889–890, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [2007]).  Plaintiff submitted no proof to raise a triable issue of fact as to whether the City created or caused the defective condition.