Benjamin Kohn, et al., Plaintiffs-Appellants, v. City of New York, et al., Defendants-Respondents, Dandy Dan, Inc., et al., Defendants.

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

Benjamin Kohn, et al., Plaintiffs-Appellants, v. City of New York, et al., Defendants-Respondents, Dandy Dan, Inc., et al., Defendants.

1891

Decided: January 14, 2010

Mazzarelli, J.P., Catterson, Moskowitz, Richter, Manzanet-Daniels, JJ. Arnold E. DiJoseph III, New York, for appellants. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Richard E. Lerner of counsel), for respondents.

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Order, Supreme Court, New York County (Karen S. Smith, J.), entered May 30, 2008, which granted defendants City and Petrocelli's motion for summary judgment dismissing the complaint, unanimously modified, on the law, the complaint reinstated as to defendant City, and otherwise affirmed, without costs.

Plaintiffs were passengers in a taxi that collided with another taxi at the intersection of Lexington Avenue and East 23rd Street in Manhattan, at a time when the traffic signals were not functioning at that spot.   Pursuant to a contract with the City, Petrocelli was required to respond within two hours of receipt of notice of an outage.   The accident occurred before the time Petrocelli was required to arrive.

A municipality has a duty to maintain its streets in a reasonably safe condition.   In order to prevail, plaintiff must show that the City permitted a dangerous or potentially hazardous condition to exist and cause injury (cf.   Thompson v. City of New York, 78 N.Y.2d 682 [1991] ).   Plaintiffs presented sufficient evidence to raise a triable issue of fact as to whether the City promptly acted to repair the traffic signal or whether the City deployed a traffic officer to the scene in a timely fashion.   Furthermore, there is a question of fact on whether either event was a significant factor in causing the accident.

As to Petrocelli, plaintiffs conceded before the motion court that the City should bear the entire responsibility for the injuries;  they only opposed the grant of summary judgment as to the City. However, before this Court, they seek to hold Petrocelli liable because it allegedly failed to respond to an extremely dangerous condition at a busy intersection.   Thus, we decline to consider this argument, improperly raised for the first time on appeal.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK