Salierno v. City of Mount Vernon

12 Citing cases

  1. Sanon v. MTA Long Island R.R.

    203 A.D.3d 773 (N.Y. App. Div. 2022)   Cited 6 times

    Here, the Town established, prima facie, that the Town Clerk did not receive prior written notice of the defect in the sidewalk, as required (see Code of the Town of Babylon § 158–2). In opposition, the plaintiff raised a triable issue of fact as to whether the Town created the dangerous condition by moving the trash can and thereby exposing the metal bolt (seeSalierno v. City of Mount Vernon, 107 A.D.3d 971, 972, 966 N.Y.S.2d 901 ; Laracuente v. City of New York, 104 A.D.3d 822, 823, 961 N.Y.S.2d 527 ). Accordingly, the Supreme Court properly denied the Town's motion for summary judgment dismissing the complaint insofar as asserted against it.

  2. Leem v. 152-24 N., LLC

    201 A.D.3d 918 (N.Y. App. Div. 2022)   Cited 9 times

    Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ). The defendant's contention that the defect was trivial and therefore not actionable is raised for the first time on appeal, and thus, is not properly before this Court (seeBonilla v. Southside United Hous. Dev. Fund Corp., 181 A.D.3d 550, 551, 117 N.Y.S.3d 612 ; Salierno v. City of Mount Vernon, 107 A.D.3d 971, 972, 966 N.Y.S.2d 901 ). RIVERA, J.P., CHAMBERS, FORD and DOWLING, JJ., concur.

  3. Bonilla v. Southside United Hous. Dev. Fund Corp.

    2020 N.Y. Slip Op. 1472 (N.Y. App. Div. 2020)   Cited 9 times

    "[A] party cannot sustain its prima facie burden by relying on evidence submitted for the first time in its reply papers" (Matthews v Bright Star Messenger Ctr., LLC, 173 AD3d 732, 734; see Yuen Lum v Wallace, 70 AD3d 1013, 1014). The defendants' contention that the liquid on the step was trivial and thus not actionable is raised for the first time on appeal and is not properly before this Court (see Salierno v City of Mount Vernon, 107 AD3d 971, 972). In light of our determination, the parties' remaining contentions need not be reached.

  4. Berr v. Grant

    149 A.D.3d 536 (N.Y. App. Div. 2017)   Cited 8 times

    However, plaintiff's testimony specifying where he fell, together with his engineer's affidavit about the defects, dangerous conditions, and code violations at that site, were sufficient to enable a jury to draw the reasonable inference that plaintiff's accident was caused by the alleged defective conditions present at the accident site (see Rodriguez v. Leggett Holdings, LLC, 96 A.D.3d 555, 947 N.Y.S.2d 429 [1st Dept.2012] ; Babich v. R.G.T. Rest. Corp., 75 A.D.3d 439, 440, 906 N.Y.S.2d 528 [1st Dept.2010] ). Defendants' argument that the uneven bricks were a trivial defect and nonactionable as a matter of law is made for the first time on appeal and is therefore not properly before this Court (see Salierno v. City of Mount Vernon, 107 A.D.3d 971, 972, 966 N.Y.S.2d 901 [2d Dept.2013] ). In any event, the argument would not entirely dispose of plaintiff's case, as it pertains to only one of the categories of defects and violations identified by plaintiff's expert.

  5. Nerey v. Greenpoint Mortg. Funding, Inc.

    144 A.D.3d 646 (N.Y. App. Div. 2016)   Cited 42 times

    Accordingly, the Supreme Court properly granted the ReMax defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.The plaintiffs' remaining contention, raised for the first time on appeal, is not properly before this Court (see Salierno v. City of Mount Vernon, 107 A.D.3d 971, 972, 966 N.Y.S.2d 901 ).

  6. Tirado v. Bd. of Trs. of N.Y.C. Fire Dep't Pension Fund

    142 A.D.3d 709 (N.Y. App. Div. 2016)   Cited 1 times

    Construing the effect of the order and decree vacating the default divorce judgment was a question of law for the court and did not require deference to the agency's area of expertise (see Valentin v. New York City Police Pension Fund, 16 A.D.3d 145, 792 N.Y.S.2d 22 ). The appellants' remaining contentions are improperly raised for the first time on appeal or are without merit (see Salierno v. City of Mount Vernon, 107 A.D.3d 971, 966 N.Y.S.2d 901 ). Accordingly, the Supreme Court properly granted the petition, annulled the October 2, 2012, determination, and directed the Fund to award the petitioner surviving spouse pension benefits (see Calzaretta v. Mulrain, 131 N.Y.S.2d 76 ).

  7. Simon v. Vill. of Lynbrook

    116 A.D.3d 692 (N.Y. App. Div. 2014)   Cited 16 times

    The Supreme Court denied the motion. Where, as here, a municipality has enacted a prior written notice statute, it may not be subjected to liability for injuries caused by an improperly maintained sidewalk unless it has received written notice of the defect, or an exception to the written notice requirement applies ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Salierno v. City of Mount Vernon, 107 A.D.3d 971, 966 N.Y.S.2d 901;Carlucci v. Village of Scarsdale, 104 A.D.3d 797, 961 N.Y.S.2d 318). “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” (Avellino v. City of New York, 107 A.D.3d 836, 837, 968 N.Y.S.2d 114;see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Poirier v. City of Schenectady, 85 N.Y.2d 310, 314–315, 624 N.Y.S.2d 555, 648 N.E.2d 1318;Miller v. Village of E. Hampton, 98 A.D.3d 1007, 1008, 951 N.Y.S.2d 171). Here, the defendant established its entitlement to judgment as a matter of law by demonstrating, prima facie, that it lacked prior written notice of the allegedly defective condition ( see Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Oliveri v. Village of Greenport, 93 A.D.3d 773, 940 N.Y.S.2d 675;Rodriguez v. Town o

  8. Zielinski v. City of Mount Vernon

    115 A.D.3d 946 (N.Y. App. Div. 2014)   Cited 9 times

    The defendant moved for summary judgment dismissing the complaint, arguing, inter alia, that it did not receive prior written notice of the alleged defect in the sidewalk, and that it did not create the defective condition.The Supreme Court denied the defendant's 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 unless it has received prior written notice of the defect, or an exception to the written notice requirement applies ( see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;Salierno v. City of Mount Vernon, 107 A.D.3d 971, 971–972, 966 N.Y.S.2d 901;Laracuente v. City of New York, 104 A.D.3d 822, 822, 961 N.Y.S.2d 527). The Court of Appeals has recognized only two exceptions to this rule, “namely, where the locality created the defect or hazard through an affirmative act of negligence and where a ‘special use’ confers a special benefit upon the locality” ( Amabile v. City of Buffalo, 93 N.Y.2d at 474, 693 N.Y.S.2d 77, 715 N.E.2d 104;see Laracuente v. City of New York, 104 A.D.3d at 822, 961 N.Y.S.2d 527;Katsoudas v. City of New York, 29 A.D.3d 740, 741, 815 N.Y.S.2d 243). Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law, as its submissions raised a triable issue of fact as to whether it created the allegedly defective sidewalk condition that caused the plaintiff's accident through an affirmative act of negligence ( see Kiernan v. Thompson, 73 N.Y.2d 840, 841–842, 537 N.Y.S.2d 122, 534 N.E.2d 39;Cabrera v. City of New York, 21 A.D.3d 1047, 1048, 803 N.Y.S.2d 584;Ricciuti v. Villa

  9. Endless Ocean, LLC v. Twomey, Latham, Shea, Kelley, Dubin & Quartararo

    113 A.D.3d 587 (N.Y. App. Div. 2014)   Cited 45 times

    The documents submitted by the defendants on appeal, which were annexed to their brief, are not properly before this Court, as they were not submitted to the Supreme Court ( seeCPLR 5526; Constantine v. Premier Cab Corp., 295 A.D.2d 303, 304, 743 N.Y.S.2d 516). Moreover, the defendants' arguments that relied upon these documents were improperly raised for the first time on appeal ( see Salierno v. City of Mount Vernon, 107 A.D.3d 971, 972, 966 N.Y.S.2d 901).

  10. Sanon v. MTA Long Island R.R.

    2022 N.Y. Slip Op. 1337 (N.Y. Sup. Ct. 2022)

    Here, the Town established, prima facie, that the Town Clerk did not receive prior written notice of the defect in the sidewalk, as required (see Code of the Town of Babylon § 158-2). In opposition, the plaintiff raised a triable issue of fact as to whether the Town created the dangerous condition by moving the trash can and thereby exposing the metal bolt (see Salierno v City of Mount Vernon, 107 A.D.3d 971, 972; Laracuente v City of New York, 104 A.D.3d 822, 823). Accordingly, the Supreme Court properly denied the Town's motion for summary judgment dismissing the complaint insofar as asserted against it.