Pena v City of Yonkers

Pena v City of Yonkers 2011 NY Slip Op 01632 Decided on March 1, 2011 Appellate Division, Second 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 March 1, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
JOSEPH COVELLO, J.P.
CHERYL E. CHAMBERS
PLUMMER E. LOTT
JEFFREY A. COHEN, JJ.
2010-01328
(Index No. 22918/08)

[*1]Jasmin Pena, etc., et al., respondents,

v

City of Yonkers, appellant.




Mark W. Blanchard, Corporation Counsel, Yonkers, N.Y. (Michael
Levinson of counsel), for appellant.
Scott Baron & Associates, P.C., Howard Beach, N.Y. (W.
Bradford Bernadt of counsel), for
respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered January 12, 2010, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

The infant plaintiff allegedly was injured when her right foot came into contact with a piece of metal protruding from the grassy area of a public sidewalk.

The defendant, City of Yonkers, established its prima facie entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that it did not have prior written notice of the alleged defect (see Charter of the City of Yonkers § C24-11; Lawler v City of Yonkers, 45 AD3d 813; Rochford v City of Yonkers, 12 AD3d 433). In opposition, the plaintiffs failed to raise a triable issue of fact because they offered only speculation that the defendant created the alleged defect (see Patti v Town of N. Hempstead, 23 AD3d 362; Regan v City of New York, 8 AD3d 462). Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
COVELLO, J.P., CHAMBERS, LOTT and COHEN, JJ., concur.

ENTER:

Matthew G. Kiernan [*2]

Clerk of the Court