Opinion
2014-04-9
Sharon METHAL, appellant, v. CITY OF NEW YORK, respondent, et al., defendant.
Herschel Kulefsky, New York, N.Y. (Ephrem J. Wertenteil of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Susan P. Greenberg of counsel), for respondent.
Herschel Kulefsky, New York, N.Y. (Ephrem J. Wertenteil of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Susan P. Greenberg of counsel), for respondent.
MARK C. DILLON, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated May 15, 2012, which 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, with costs.
While crossing Avenue M near the intersection of East 15th Street in Brooklyn, the plaintiff allegedly was injured after she tripped and fell on a raised piece of asphalt located at a bus stop. After the completion of discovery, the defendant City of New York moved for summary judgment dismissing the complaint insofar as asserted against it on the ground that it had not received prior written notice of the alleged roadway defect ( see Administrative Code of City of N.Y. § 7–201[c][2] ). The Supreme Court granted the motion.
“Where, as here, a municipality has enacted a prior written notice statute, it may not be subject to liability for personal injuries caused by a defective street or sidewalk condition absent proof of prior written notice or an exception thereto” ( Laracuente v. City of New York, 104 A.D.3d 822, 822, 961 N.Y.S.2d 527;see Poirier v. City of Schenectady, 85 N.Y.2d 310, 313, 624 N.Y.S.2d 555, 648 N.E.2d 1318;Tallerico v. City of Peekskill, 114 A.D.3d 932, 980 N.Y.S.2d 842). “ ‘The only recognized exceptions to the statutory prior written notice requirement involve situations in which the municipality created the defect or hazard through an affirmative act of negligence, or where a special use confers a benefit upon the municipality’ ” ( Phillips v. City of New York, 107 A.D.3d 774, 775, 967 N.Y.S.2d 736, quoting Conner v. City of New York, 104 A.D.3d 637, 638, 960 N.Y.S.2d 204). The affirmative negligence exception is limited to work done by a municipality that immediately results in the existence of a dangerous condition ( see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873;Oboler v. City of New York, 8 N.Y.3d 888, 832 N.Y.S.2d 871, 864 N.E.2d 1270;Hirasawa v. City of Long Beach, 57 A.D.3d 846, 847–848, 870 N.Y.S.2d 96). The special use exception is “reserved for situations where a landowner whose property abuts a public street or sidewalk derives a special benefit from [the] property unrelated to the public use” ( Poirier v. City of Schenectady, 85 N.Y.2d at 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318).
Here, the City established, prima facie, that it did not have prior written notice of the roadway defect upon which the plaintiff allegedly tripped and fell. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the City did have prior written notice or whether an exception to that requirement applied. Specifically, the plaintiff failed to raise a triable issue as to whether the City created the alleged roadway defect through an affirmative act of negligence which immediately resulted in the existence of that defect ( see Yarborough v. City of New York, 10 N.Y.3d at 728, 853 N.Y.S.2d 261, 882 N.E.2d 873).
The plaintiff failed to allege the special use exception in either her notice of claim or her complaint ( see Semprini v. Village of Southampton, 48 A.D.3d 543, 852 N.Y.S.2d 208). Therefore, that new theory of liability was improperly raised in opposition to the City's motion for summary judgment ( see id.). In any event, the operation of bus stops on City roadways does not bestow a special benefit upon the City unrelated to the public use and does not constitute a special use of the roadway ( see Poirier v. City of Schenectady, 85 N.Y.2d at 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318;Tanzer v. City of New York, 41 A.D.3d 582, 583, 837 N.Y.S.2d 336).
The plaintiff's remaining contention is without merit.
Accordingly, the Supreme Court properly granted the City's motion for summary judgment dismissing the complaint insofar as asserted against it.