Opinion
17198 Index No. 24135/13 Case No. 2021–04731
01-31-2023
Isabel RAMOS, Plaintiff–Appellant, v. The CITY OF NEW YORK et al., Defendants–Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Sylvia O. Hinds–Radix, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondents.
Renwick, J.P., Webber, Singh, Rodriguez, Higgitt, JJ.
Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered September 15, 2021, which granted defendants’ (the City) motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
This action arises from an accident that occurred when plaintiff slipped and fell on certain debris while walking on a path through Macombs Dam Park, during her morning commute. The City established prima facie entitlement to summary judgment pursuant to Administrative Code of the City of New York § 7–201(c)(2) that it did not have prior written notice of the alleged condition, and plaintiff failed to raise an issue of fact in opposition (see Groninger v. Village of Mamaroneck, 67 A.D.3d 733, 734, 888 N.Y.S.2d 205 [2d Dept. 2009], affd 17 N.Y.3d 125, 927 N.Y.S.2d 304, 950 N.E.2d 908 [2011] ). Plaintiff's argument that an exception to that rule applies because the City caused or created the condition through an affirmative act of negligence is unpreserved because she failed to raise this theory of liability in her notice of claim (see Perez v. City of New York, 193 A.D.3d 432, 433, 144 N.Y.S.3d 43 [1st Dept. 2021] ; see also Ghin v. City of New York, 76 A.D.3d 409, 410, 904 N.Y.S.2d 905 [1st Dept. 2010] ). Nor is the issue of the applicability of the cause or create exception to the prior written notice requirement a pure question of law that is evident from the face of the record (see e.g. Salodkaya v. City of New York, 193 A.D.3d 604, 605, 147 N.Y.S.3d 24 [1st Dept. 2021] ).
Even assuming plaintiff's arguments were properly advanced, she failed to raise an issue of fact as to whether the City caused or created the alleged defective condition through an affirmative act of negligence (see Yarborough v. City of New York, 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261, 882 N.E.2d 873 [2008] ; see also e.g. Dunn v. City of New York, 206 A.D.3d 403, 169 N.Y.S.3d 620 [1st Dept. 2022] ). Plaintiff's argument that the City's snow and ice removal activities forced her to walk and trip over the debris from nearby ballfields on the cleared area of the pathway, is speculative (see Gray v. City of New York, 195 A.D.3d 538, 145 N.Y.S.3d 802 [1st Dept. 2021] ). In any event, contrary to plaintiff's argument, the alleged "failure to remove all the snow or ice ... is not an affirmative act of negligence" ( Groninger v. Village of Mamaroneck, 67 A.D.3d at 734, 888 N.Y.S.2d 205 ).
We have considered plaintiff's remaining arguments and find them unavailing.