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reversing the First Department, finding no triable issue of fact exists "as to whether the City created a dangerous condition that caused plaintiff's injuries."
Summary of this case from Mazzella v. City of N.Y.Opinion
No. 116 SSM 5.
Decided March 25, 2010.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered August 25, 2009. The Appellate Division order, insofar as appealed from, affirmed an order of the Supreme Court, New York County (Karen S. Smith, J.), which had granted defendant City of New York's motion for summary judgment dismissing the complaint and all cross claims as against it only to the extent of finding that defendant had not received prior written notice of a hole over which plaintiff allegedly tripped, and had denied the motion to the extent of finding that issues of fact existed as to whether defendant had caused or created the hole. The following question was certified by the Appellate Division: "Was the order of this Court properly made?"
Plaintiff commenced the instant action to recover damages after she tripped and injured her knee when she stepped into a triangle-shaped hole at the bottom edge of a pedestrian ramp connected to a sidewalk. A missing street curb formed the base of the hole. The majority at the Appellate Division concluded that although defendant municipality did not have prior written notice of the defective condition, an issue of fact existed as to whether it caused or created the defect, citing evidence that the municipality repaved the street and either buried the curb or failed to install one, thereby creating a vertical drop from the ramp to the street, and noting that the missing curb, which was the municipality's responsibility, accounted for the base of the triangular hole. The dissent concluded that evidence concerning the missing curb or construction of the ramp was irrelevant as plaintiff never stated these conditions were the cause of her fall, and that it was nothing but speculation to say that the hole was an immediate result of the municipality's work.
Ortiz v City of New York, 67 AD3d 21, reversed.
Michael A. Cardozo, Corporation Counsel, New York City ( Deborah A. Brenner of counsel), for appellant.
Pollack, Pollack, Isaac De Cicco, New York City ( Brian J. Isaac of counsel) for Ramona Ortiz, respondent.
Flynn, Gibbons Dowd, New York City ( Lawrence A. Doris of counsel), for 240 West 98th Street Associates, LLC and another, respondents.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order, insofar as appealed from, reversed, with costs, defendant City of New York's motion for summary judgment granted, the complaint and all cross claims against the City of New York dismissed, and certified question answered in the negative. No triable issue of fact exists as to whether the City created a dangerous condition that caused plaintiffs injuries.