GORI v. CITY OF NEW YORK

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

Regina GORI, Appellant, v. CITY OF NEW YORK, respondent.

2017–01429

Decided: April 17, 2019

JOHN M. LEVENTHAL, J.P., SHERI S. ROMAN, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Brian J. Shoot and Vito A. Cannavo of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Deborah A. Brenner, Emma Grunberg, and Nwamaka Ejebe of counsel), for respondent.

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when she was thrown from her bicycle while riding in Brooklyn when the front wheel of her bicycle became caught on a depressed manhole cover owned by the City of New York. The plaintiff commenced this action against the City to recover damages for personal injuries, alleging, inter alia, that the City had prior written notice of the allegedly dangerous manhole cover, was negligent in failing to maintain the accident site, and violated its statutory duty to maintain the area pursuant to 34 RCNY § 2–07(b).  After discovery, the City moved for summary judgment dismissing the complaint, arguing, inter alia, that it did not have prior written notice of the alleged condition as required under section 7–201(c)(2) of the Administrative Code of the City of New York, and that no recognized exception to the prior written notice requirement applied.  The plaintiff opposed, arguing that the City failed to establish, prima facie, that it lacked prior written notice of the alleged condition, and that section 7–201(c)(2) did not apply in light of the City's nondelegable duty under 34 RCNY § 2–07(b).  The Supreme Court granted the City's motion, and the plaintiff appeals.

Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for a defect within the scope of the law unless it has received prior written notice of the defect or an exception to the prior written notice requirement applies (see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;  Albano v. Suffolk County, 99 A.D.3d 741, 742, 952 N.Y.S.2d 245;  Forbes v. City of New York, 85 A.D.3d 1106, 1107, 926 N.Y.S.2d 309).  “The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property” (Forbes v. City of New York, 85 A.D.3d at 1107, 926 N.Y.S.2d 309;  see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104).

The City established its prima facie entitlement to judgment as a matter of law by presenting evidence that the City agency responsible for maintaining the subject manhole cover did not have prior written notice of the alleged condition of the manhole cover as required by Administrative Code of the City of New York § 7–201(c)(2) (see Conner v. City of New York, 104 A.D.3d 637, 638, 960 N.Y.S.2d 204;  cf. Bruni v. City of New York, 2 N.Y.3d 319, 325, 778 N.Y.S.2d 757, 811 N.E.2d 19), and that no recognized exception to the prior written notice requirement applies.  In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Conner v. City of New York, 104 A.D.3d at 638, 960 N.Y.S.2d 204).  Contrary to the plaintiff's contention, the City's duty to maintain city-owned street manhole covers in accordance with 34 RCNY § 2–07(b) does not obviate the requirement of prior written notice under section 7–201(c)(2) or the application of a recognized exception thereto as a condition precedent to a civil lawsuit against the City (see Administrative Code § 7–201[c][2];  see also Oboler v. City of New York, 8 N.Y.3d 888, 889, 832 N.Y.S.2d 871, 864 N.E.2d 1270).

The plaintiff's remaining contentions, raised for the first time on appeal, are not properly before us.

Accordingly, we agree with the Supreme Court's determination to grant the City's motion for summary judgment dismissing the complaint.

LEVENTHAL, J.P., ROMAN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.

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