Opinion
2002-10934.
Decided March 8, 2004.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (M. Garson, J.) dated October 17, 2002, as granted that branch of the motion of the defendant City of New York which was for summary judgment dismissing the cause of action based on General Municipal Law § 205-e.
Breadbar, Garfield Schmelkin, New York, N.Y. (Kevin A. O'Connell of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Alan G. Krams of counsel; Robert M. Johnston on the brief), for respondent.
Before: A. GAIL PRUDENTI, P.J., MYRIAM J. ALTMAN, DANIEL F. LUCIANO, THOMAS A. ADAMS, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion which was for summary judgment dismissing the cause of action based on General Municipal Law § 205-e is denied, and that cause of action is reinstated against the City of New York.
The plaintiff, a police officer who was injured while on duty, contends that the defendant City of New York is liable for damages pursuant to General Municipal Law § 205-e(1) based upon proof that the City created, or failed to remedy, a dangerous condition existing within a sidewalk tree well, in violation of the duty imposed on it by New York City Charter § 2903(b)(2) ( see generally Cosgriff v. City of New York, 93 N.Y.2d 539, affg 241 A.D.2d 382; see also Grgich v. City of New York, 2 A.D.3d 680; Hayes v. City of New York, 264 A.D.2d 610; Simons v. City of New York, 252 A.D.2d 451; Palazzolla v. City of New York, 248 A.D.2d 250; Giblin v. City of New York, 267 A.D.2d 127). The City did not refute this contention.
The City's only argument is that the order should be affirmed insofar as appealed from due to the inadequacy of the description of the "manner in which the claim arose" contained in the plaintiff's notice of claim (General Municipal Law § 50-e; cf. General Municipal Law § 50-e; General Municipal Law § 205-e; D'Alessandro v. New York City Tr. Auth., 83 N.Y.2d 891) . This argument was improperly raised for the first time in the City's reply papers, and the plaintiff did not have a fair opportunity to address this issue. For that reason alone, this argument does not support an affirmance of the order appealed from ( see Medugno v. City of Glen Cove, 279 A.D.2d 510; Cumpston v. Marcinkowska, 275 A.D.2d 340).
PRUDENTI, P.J., ALTMAN, LUCIANO and ADAMS, JJ., concur.