Ghin v City of New York

Ghin v City of New York 2010 NY Slip Op 06285 [76 AD3d 409] August 3, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 29, 2010

Agnes Lee Ghin, Appellant,
v
City of New York, Respondent, et al., Defendants.

—[*1] Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph, III of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Pamela Seider Dolgow of counsel), for respondent.

Amended judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered October 3, 2008, dismissing the complaint, unanimously affirmed, without costs.

The City had no prior written notice of the sidewalk condition, and no exception to the notice requirement applied (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]).

Plaintiff's notice of claim failed to give notice of the theory that inadequate lighting or the scaffolding by which the City allegedly made special use of the sidewalk, caused plaintiff's fall (see Chieffet v New York City Tr. Auth., 10 AD3d 526, 527 [2004]; see also Semprini v Village of Southampton, 48 AD3d 543, 544 [2008]). Although the notice of claim stated that plaintiff tripped on a raised metal plate, it did not allege, nor did plaintiff present any proof at trial, that the City derived any special benefit from the metal plate (see Poirier v City of Schenectady, 85 NY2d 310, 314-315 [1995]; Schleif v City of New York, 60 AD3d 926, 928 [2009]; Smith v City of Syracuse, 298 AD2d 842, 842 [2002]). Nor did plaintiff establish that the City derived any special use from the scaffolding or the fence.

Plaintiff's claim on appeal that the City created the defect or hazard through an affirmative act of negligence is unavailing (see e.g. Yarborough v City of New York, 10 NY3d 726 [2008]). It is only by speculation that a jury could find that the dangerous sidewalk condition was the immediate result of the City's actions (see Oboler v City of New York, 8 NY3d 888, 889-890 [2007]; Brooks v Village of Horseheads, 14 AD3d 756 [2005]). Concur—Tom, J.P., Andrias, Friedman, Nardelli and Catterson, JJ.