MAZZOLA v. CITY OF NEW YORK (2006)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Partnow, J.), dated May 25, 2005, as granted that branch of the motion of the defendant City of New York which was for summary judgment dismissing the complaint insofar as asserted against it.

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

The defendant City of New York established its prima facie entitlement to judgment as a matter of law by submitting evidence that it never received prior written notice of the defect in the roadway that allegedly caused the plaintiff to fall (see Administrative Code of the City of New York § 7-201[c][2] ).   In opposition, the plaintiff asserted that the City created the allegedly dangerous condition.   However, the unsworn report of the plaintiff's engineering expert did not constitute competent evidence (see CPLR 2106;  Rubens v. Fund, 23 A.D.3d 636, 637, 805 N.Y.S.2d 640;  Ritts v. Teslenko, 276 A.D.2d 768, 769, 715 N.Y.S.2d 418;  Woodard v. City of New York, 262 A.D.2d 405, 692 N.Y.S.2d 407) and, therefore, was insufficient to raise a triable issue of fact as to whether the condition was created through an affirmative act of negligence (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).   Accordingly, the Supreme Court properly granted that branch of the City's motion which was for summary judgment dismissing the complaint insofar as asserted against it (see Katsoudas v. City of New York, 29 A.D.3d 740, 815 N.Y.S.2d 243;  Colon v. City of New York, 29 A.D.3d 724, 815 N.Y.S.2d 244;  Yarborough v. City of New York, 28 A.D.3d 650, 813 N.Y.S.2d 511;  Albright v. City of New York, 25 A.D.3d 577, 578, 807 N.Y.S.2d 146).

The plaintiff's contention that the alleged defect constituted a special use of the roadway was improperly raised for the first time on appeal (see General Motors Acceptance Corp. v. Grade A Auto Body, 21 A.D.3d 447, 799 N.Y.S.2d 748;  Ealey v. City of New York, 16 A.D.3d 543, 792 N.Y.S.2d 159).