LAWLER v. CITY OF YONKERS

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

Bernadette A. LAWLER, appellant, v. CITY OF YONKERS, respondent.

Decided: November 27, 2007

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, MARK C. DILLON, and DANIEL D. ANGIOLILLO, JJ. John E. Lawler, Yonkers, N.Y., for appellant. Frank J. Rubino, Yonkers, N.Y. (Rory McCormick of counsel), for respondent.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Smith, J.), dated August 22, 2006, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when she tripped and fell on a public sidewalk from which a rock was protruding.   According to the plaintiff, the rock protrusion was surrounded by a lumpy and uneven mass of asphalt.   She commenced this action to recover damages against the City of Yonkers, the municipal owner of the sidewalk.

 The City made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it had no prior written notice of the allegedly defective sidewalk condition that caused the plaintiff's injuries (see General Municipal Law § 50-e[4];  Second Class Cities Law § 244;  Charter of the City of Yonkers § C24-11;  Amabile v. City of Buffalo, 93 N.Y.2d 471, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Jacobs v. Village of Rockville Ctr., 41 A.D.3d 539, 540, 838 N.Y.S.2d 597;  Giffords v. Water Auth. Of Great Neck N., 40 A.D.3d 695, 695-696, 836 N.Y.S.2d 629;  Ferreira v. County of Orange, 34 A.D.3d 724, 725, 825 N.Y.S.2d 122;  Granderson v. City of White Plains, 29 A.D.3d 739, 815 N.Y.S.2d 246;  Gold v. County of Westchester, 15 A.D.3d 439, 440, 790 N.Y.S.2d 675).   In opposition, the plaintiff failed to raise a triable issue of fact because she offered only speculation that the City affirmatively created the alleged sidewalk defect (see Delgado v. County of Suffolk, 40 A.D.3d 575, 576, 835 N.Y.S.2d 379;  Khemraj v. City of New York, 37 A.D.3d 419, 420, 829 N.Y.S.2d 621;  Ferreira v. County of Orange, 34 A.D.3d 724, 825 N.Y.S.2d 122;  Hyland v. City of New York, 32 A.D.3d 822, 823, 821 N.Y.S.2d 138;  Gold v. County of Westchester, 15 A.D.3d 439, 440, 790 N.Y.S.2d 675).

 The plaintiff's contention that the alleged sidewalk defect constituted a public nuisance is not properly before this Court as it was raised for the first time on appeal (see Matter of AIU Ins. Co. v. Rodriguez, 43 A.D.3d 1042, 842 N.Y.S.2d 502;  Ferreira v. County of Orange, 34 A.D.3d 724, 725, 825 N.Y.S.2d 122).

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