Haxhaj v City of New York

Haxhaj v City of New York 2009 NY Slip Op 09519 [68 AD3d 612] December 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Zarah Haxhaj, an Infant, by Her Mother and Natural Guardian, Yasmin Haxhaj, et al., Appellants,
v
City of New York, Defendant, and The Central Park Conservancy, Respondent.

—[*1] Law Offices of Kenneth A. Wilhelm, New York (Rory Shectman of counsel), for appellants.

Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel), for respondent.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered May 5, 2008, which granted the motion of defendant Central Park Conservancy (CPC) to set aside the verdict, unanimously affirmed, without costs.

Plaintiffs were unable to show that defendant City, whose duty to maintain its roads and highways in a reasonably safe condition is nondelegable (see Lopes v Rostad, 45 NY2d 617, 623 [1978]; McAllen v City of New York, 270 AD2d 43 [2000]), had prior written notice of the alleged defect in the pathway (Administrative Code of City of NY § 7-201 [c]), or that either defendant had created the defect through its own affirmative negligence. They further failed to demonstrate that any circumstances exist under which CPC, a contractor, could have owed a duty of care to them (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). The agreement between the defendants did not indicate that CPC assumed any duty of the City to maintain the premises in a safe condition.

We have considered plaintiffs' remaining contentions and find them unavailing. Concur—Gonzalez, P.J., Tom, Sweeny, Freedman and Abdus-Salaam, JJ. [Prior Case History: 19 Misc 3d 1135(A), 2008 NY Slip Op 51009(U).]