Leitner v 304 Assoc., LLC

Leitner v 304 Assoc., LLC 2015 NY Slip Op 04593 Decided on June 2, 2015 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 June 2, 2015
Friedman, J.P., Saxe, Manzanet-Daniels, Feinman, Gische, JJ.
15287 101499/11

[*1] Karen Leitner, Plaintiff-Respondent, —

v

304 Associates, LLC, Defendant, Central Parking Systems of New York, Inc., Defendant-Respondent, City of New York, Defendant-Appellant.

Zachary W. Carter, Corporation Counsel, New York (Elizabeth S. Natrella of counsel), for appellant.

Leitner Varughese PLLC, Melville (Brett R. Leitner of counsel), for Karen Leitner, respondent.

Fixler & LaGattuta, LLP, New York (Jason L. Fixler of counsel), for Central Parking Systems of New York, Inc., respondent.

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered July 26, 2013, which, to the extent appealed from as limited by the briefs, denied defendant City of New York's (the City) motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment in favor of the City.

The City is entitled to summary judgment because it met its prima facie burden of demonstrating that it did not receive prior written notice of the pothole that plaintiff identified as the cause of her fall (see Administrative Code of City of NY § 7-201 [c] [2]), and plaintiff and codefendant Central Parking Systems of New York, Inc. have failed to show that an exception to the statutory notice requirement applies (see Yarborough v City of New York, 10 NY3d 726, 728 [2008]).

The City's 311 record of a citizen's April 9, 2010 telephonic report of numerous potholes on West 49th Street between Eighth Avenue and Ninth Avenue at the curbside did not provide the City with prior written notice of the particular pothole that was in the roadway in front of 304 West 49th Street where plaintiff fell on July 20, 2010 (see Stoller v City of New York, _ AD3d _, 2015 NY Slip Op 01876, *1-2 [1st Dept 2015]; Boniello v City of New York, 106 AD3d 612 [1st Dept 2013]). Moreover, the April 29, 2010 FITS report, which indicates that eighteen potholes on West 49th Street between Eighth Avenue and Ninth Avenue were closed, is insufficient to [*2]establish that any of the potholes that were repaired that day was the subject pothole that caused plaintiff's fall (see Haulsey v City of New York, 123 AD3d 606, 607 [1st Dept 2014]; Abott v City of New York, 114 AD3d 515, 516 [1st Dept 2014]).

A deposition of the repair crew that fixed the potholes at the accident location prior to the accident is not required, because plaintiff has stated that she does not allege that the City caused or created the alleged defect, and the allegation that the City somehow missed the subject defect when it repaired the area on April 29, 2010, is speculative (see DeHoyos v City of New York, 121 AD3d 632 562 [1st Dept 2014]). Lastly, plaintiff's purported claim that the City may be held liable for her personal injuries because it failed to maintain the manhole cover which is allegedly six inches away from the subject defect (see 34 RCNY 2-07 [b] [1) was not preserved for appellate review (see Mendelsohn v City of N.Y. [19th Precinct], 89 AD3d 569, 569-570 [1st Dept 2011], lv denied 19 NY3d 804 [2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 2, 2015

CLERK