O'Donoghue v City of New York

O'Donoghue v City of New York 2012 NY Slip Op 07371 Decided on November 8, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 8, 2012
Andrias, J.P., Saxe, Moskowitz, Abdus-Salaam, Manzanet-Daniels, JJ.
8405 117382/09

[*1]Patricia O'Donoghue, Plaintiff-Appellant,

v

The City of New York, Defendant-Respondent, Rivergate LP, et al., Defendants.




Smiley & Smiley, LLP, Garden City (John V. Decolator of
counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Janet L.
Zaleon of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered October 12, 2011, which, in an action for personal injuries allegedly sustained when plaintiff tripped and fell over a raised brick in a tree well, granted the motion of defendant City of New York for summary judgment dismissing the complaint, unanimously affirmed, without costs.

It is well established that in order to hold the City liable for injuries resulting from defects in tree wells in City-owned sidewalks, a plaintiff must demonstrate that the City has received prior written notice of the defect (see Administrative Code of the City of New York § 7-201[c][2]; Tucker v City of New York, 84 AD3d 640 [lst Dept 2011], lv denied 17 NY3d 713 [2011]). Here, in opposition to the City's showing of entitlement to judgment as a matter of law, plaintiff submitted, inter alia, a Big Apple Map to prove that the City had notice of the allegedly defective condition. However, the map only provided notice that every tree well on the block lacked a fence or barrier, which was not sufficient to bring the particular condition to the City's attention (see D'Onofrio v City of New York, 11 NY3d 581 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 8, 2012, a.m.

CLERK