WELSH v. CITY OF NEW YORK

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

Eleanor WELSH, appellant, v. CITY OF NEW YORK, respondent, et al., defendant.

Decided: February 22, 1999

DAVID S. RITTER, J.P., THOMAS R. SULLIVAN, MYRIAM J. ALTMAN and LEO F. McGINITY, JJ. Schneider, Kleinick, Weitz, Damashek & Shoot, New York, N.Y. (Brian J. Shoot and James M. Lane of counsel), for appellant. Michael D. Hess, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and John Hogrogian of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Ramirez, J.), entered February 25, 1998, which, upon the granting of the defendant's motion for judgment as a matter of law at the close of evidence, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiff was allegedly injured when she tripped and fell on a defective sidewalk.   The most current map of the subject location prepared by the “Big Apple Pothole & Sidewalk Protection Corp.” and filed with the City of New York approximately four months before the plaintiff's accident, did not indicate a defect in the area in question.   Accordingly, as the City had no prior written notice of the sidewalk defect complained of, the action as against it was properly dismissed (see, Katz v. City of New York, 87 N.Y.2d 241, 638 N.Y.S.2d 593, 661 N.E.2d 1374;  see also, Eidelman v. Hochauser, 242 A.D.2d 596, 662 N.Y.S.2d 559;  Administrative Code of City of N.Y. § 7-201 [c][2] ).

In view of our determination with regard to the lack of notice, we do not reach the issue of whether the defect was so trivial as to be nonactionable (cf., Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489).

MEMORANDUM BY THE COURT.

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