CARBO v. CITY OF NEW YORK (2000)

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Weiss, J.), dated August 13, 1998, which, upon the granting of the motion of the defendant City of New York pursuant to CPLR 4401, made at the close of the plaintiff's case, for judgment as a matter of law dismissing the complaint insofar as asserted against it for failure to establish a prima facie case, is in favor of that defendant and against it.

ORDERED that the judgment is affirmed, with costs.

The plaintiff alleged that she fell over a raised section of a trench repair while riding her bicycle in the parking lane of Utopia Parkway.   At trial, the plaintiff's expert conceded that the repair work performed at the site took place possibly 8 to 10 years before the accident and could have been performed by an entity other than the City of New York.

There is no evidence that a dangerous condition existed when the repair was completed, or that the City of New York created the condition (see, Capobianco v. Mari, 272 A.D.2d 497, 708 N.Y.S.2d 428).   Further, the plaintiff's expert merely speculated that the work may have been performed by the City of New York.   Accordingly, the Supreme Court properly granted the motion of the City of New York for judgment as a matter of law dismissing the complaint insofar as asserted against it at the conclusion of the plaintiff's case (see, Humphreys v. Veneziano, 268 A.D.2d 461, 703 N.Y.S.2d 47).

MEMORANDUM BY THE COURT.