Opinion
05-30-2017
Frances BROWN, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent, The New York City Transit, et al., Defendants.
Pollack, Pollack, Isaac & De Cicco, LLP, New York (Denise A. Rubin of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
Pollack, Pollack, Isaac & De Cicco, LLP, New York (Denise A. Rubin of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondent.
ACOSTA, P.J., FRIEDMAN, ANDRIAS, WEBBER, GESMER, JJ.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered November 12, 2015, which granted the motion of defendant City of New York for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Plaintiff alleges that, as she was exiting a bus, she tripped and fell over the stump of a pole sign protruding about three to four inches from the sidewalk near the bus stop. The City met its prima facie burden by showing that plaintiff did not plead that the City received prior written notice of the sidewalk defect as required by Administrative Code of City of N.Y. § 7–201(c)(2) (see Katz v. City of New York, 87 N.Y.2d 241, 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374 [1995] ).
The City also submitted evidence showing the absence of prior written notice; that the sign was in good condition two years before the accident; that the City received a citizen complaint through 311 less than 15 days before plaintiff's accident; and that it repaired the condition a few days after her accident. The complaint received before the accident, even if it were in writing, could not constitute prior written notice for purposes of the statute, since it was received within the 15–day grace period provided by the statute for the City to make repairs after receiving notice (see Berrios v. City of New York, 114 A.D.3d 451, 979 N.Y.S.2d 799 [1st Dept.2014] ; Silva v. City of New York, 17 A.D.3d 566, 567, 793 N.Y.S.2d 478 [2d Dept. 2005], lv. denied 5 N.Y.3d 705, 801 N.Y.S.2d 252, 834 N.E.2d 1262 [2005] ).
As the City established there was no prior written notice, the burden shifted to plaintiff to demonstrate the existence of prior written notice or the applicability of one of two recognized exceptions to the rule (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ). Plaintiff failed to demonstrate either that she pled prior written notice or that the 311 complaint received by the City within the 15–day grace period constitutes such notice. Plaintiff's contention that the City affirmatively created the condition by removing the sign from the sleeve is unsupported by any evidence. The City's record search demonstrated that the sign was last repaired two years before plaintiff's accident, and plaintiff failed to present any evidence to the contrary. Accordingly, she failed to raise an issue of fact as to whether the City may have caused the condition through affirmative negligence that "immediately result[ed]" in a dangerous condition (Bielecki v. City of New York, 14 A.D.3d 301, 301, 788 N.Y.S.2d 67 [1st Dept.2005] ; see Oboler v. City of New York, 8 N.Y.3d 888, 832 N.Y.S.2d 871, 864 N.E.2d 1270 [2007] ).