Opinion
03-29-2017
Claire GELLMAN, et al., appellants, v. Gloria COOKE, etc., defendant, City of New York, respondent.
Alan C. Glassman, Lynbrook, NY (Adam D. Glassman of counsel), for appellants. Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and George Dellaratta of counsel), for respondent.
Alan C. Glassman, Lynbrook, NY (Adam D. Glassman of counsel), for appellants.
Zachary W. Carter, Corporation Counsel, New York, NY (Fay Ng and George Dellaratta of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Baynes, J.), dated February 24, 2015, as granted the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff Claire Gellman (hereinafter the injured plaintiff) allegedly was injured when she tripped over a raised portion of a sidewalk in Brooklyn. The accident occurred in June 2009. Thereafter, the injured plaintiff, and her husband suing derivatively, commenced this action against the defendant City of New York and another defendant. The City moved for summary judgment dismissing the complaint insofar as asserted against it, arguing that it did not have prior written notice of the allegedly defective condition. The plaintiffs, among other things, opposed the City's motion, arguing that the City received notice of the allegedly defective condition by virtue of a notice of claim that was filed in connection with a different case in 1990. In the order appealed from, the Supreme Court, inter alia, granted the City's motion. We affirm insofar as appealed from.
"Administrative Code of the City of New York § 7–201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location" (Katz v. City of New York, 87 N.Y.2d 241, 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374 ; see Williams v. City of New York, 134 A.D.3d 809, 809, 20 N.Y.S.3d 628 ; Cendales v. City of New York, 25 A.D.3d 579, 580, 807 N.Y.S.2d 414 ). Accordingly, "prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City" (Katz v. City of New York, 87 N.Y.2d at 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374 ; see Hyland v. City of New York, 32 A.D.3d 822, 823, 821 N.Y.S.2d 138 ; Estrada v. City of New York, 273 A.D.2d 194, 194, 709 N.Y.S.2d 105 ).
Here, the City established its prima facie entitlement to judgment as a matter of law by submitting proof that a search of its records revealed that it had not received any prior written notice of the allegedly defective condition (see Krausch v. Incorporated Vil. of Shoreham, 87 A.D.3d 715, 716, 928 N.Y.S.2d 769 ; Hyland v. City of New York, 32 A.D.3d at 823, 821 N.Y.S.2d 138 ; Rochford v. City of Yonkers, 12 A.D.3d 433, 433, 786 N.Y.S.2d 535 ; cf. Martinez v. City of New York, 105 A.D.3d 1013, 1014, 963 N.Y.S.2d 391 ). In opposition, the plaintiffs failed to raise a triable issue of fact. "To satisfy a prior written notice statute, the notice relied upon by a plaintiff must not be too remote in time" (Massey v. City of Cohoes, 35 A.D.3d 996, 996, 826 N.Y.S.2d 779 ; see Martens v. County of Suffolk, 100 A.D.3d 839, 840, 956 N.Y.S.2d 61 ; Silverio v. City of New York, 100 A.D.3d 543, 543, 954 N.Y.S.2d 517 ; Dalton v. City of Saratoga Springs, 12 A.D.3d 899, 901, 784 N.Y.S.2d 702 ; Busone v. City of Troy, 225 A.D.2d 967, 968, 639 N.Y.S.2d 589 ). Here, the plaintiffs' submission of a notice of claim, filed almost 19 years prior to the accident complained of, was insufficient to raise a triable issue of fact since it was too remote in time to constitute prior written notice within the meaning of Administrative Code of the City of New York § 7–201(c) (see Martens v. County of Suffolk, 100 A.D.3d at 840, 956 N.Y.S.2d 61 ; Silverio v. City of New York, 100 A.D.3d at 543, 954 N.Y.S.2d 517 ; Dalton v. City of Saratoga Springs, 12 A.D.3d at 901, 784 N.Y.S.2d 702 ; Busone v. City of Troy, 225 A.D.2d at 968, 639 N.Y.S.2d 589 ; cf. Massey v. City of Cohoes, 35 A.D.3d at 996, 826 N.Y.S.2d 779 ). Accordingly, the Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.
In light of the foregoing, we need not reach the plaintiffs' remaining contentions.