Summary
In Martinez v City of New York (105 AD3d 1013,1014 [2d Dept 2013]), it is true that the court noted "[t[he City failed to submit any affidavit from any City official or employee demonstrating that a search of the appropriate records had been done and that there was no prior written notice of the alleged dangerous condition that caused the plaintiff's accident."
Summary of this case from Thana v. City of N.Y.Opinion
2013-04-24
Luis MARTINEZ, et al., plaintiffs-respondents, v. CITY OF NEW YORK, appellant, Verizon New York, Inc., defendant-respondent, et al., defendants.
Gallo, Vitucci & Klar, LLP, New York, N.Y. (Yolanda L. Ayala of counsel), for appellant. Zwirn & Saulino, P.C. (Thomas Torto, New York, N.Y., of counsel), for plaintiffs-respondents.
Gallo, Vitucci & Klar, LLP, New York, N.Y. (Yolanda L. Ayala of counsel), for appellant. Zwirn & Saulino, P.C. (Thomas Torto, New York, N.Y., of counsel), for plaintiffs-respondents.
Cullen and Dykman, LLP, New York, N.Y. (Kevin M. Walsh and Thomas J. Abernethy of counsel), for defendant-respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, etc., the defendant City of New York appeals from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated January 31, 2012, as denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.
As the party moving for summary judgment, in order for the defendant City of New York to demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against it on the ground that it had no prior written notice of the alleged defective or dangerous condition ( see Administrative Code of the City of New York § 7–201 [c] ), it was required to submit proof that it did not receive the notice required by the statute ( see Smith v. City of Mount Vernon, 101 A.D.3d 847, 955 N.Y.S.2d 635;Spanos v. Town of Clarkstown, 81 A.D.3d 711, 712, 916 N.Y.S.2d 181; Foley v. County of Suffolk, 80 A.D.3d 658, 659–660, 915 N.Y.S.2d 157;LiFrieri v. Town of Smithtown, 72 A.D.3d 750, 752, 898 N.Y.S.2d 629;Shannon v. Village of Rockville Ctr., 39 A.D.3d 528, 529, 834 N.Y.S.2d 537). The City failed to submit any affidavit from any City official or employee demonstrating that a search of the appropriate records had been done and that there was no prior written notice of the alleged dangerous condition that caused the plaintiff's accident, and there was nothing in the deposition testimony of the three City witnesses that indicated that a search of the City records had been conducted without any success in finding any prior written notices. As such, the City failed to make a prima facie showing that no prior written notice was actually received ( see Pangerl v. Town of N. Hempstead, 76 A.D.3d 1001, 1002, 907 N.Y.S.2d 512;Reiser v. Incorporated Vil. of Rockville Ctr., 70 A.D.3d 796, 796–797, 894 N.Y.S.2d 151;McNeill v. City of New York, 40 A.D.3d 823, 836 N.Y.S.2d 279).
Since the City failed to demonstrate a prima facie entitlement to judgment as a matter of law on the ground of lack of prior written notice, the Supreme Court properly denied its motion regardless of the sufficiency of the opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;Pampillonia v. Burducea, 68 A.D.3d 1081, 1081–1082, 892 N.Y.S.2d 451;Zeitoune v. Cohen, 66 A.D.3d 889, 891, 887 N.Y.S.2d 253).