Spencer v. City of New York — 149 A.D.3d 557

Majority

p. 557

Derrick Spencer, Respondent, v City of New York, Appellant, and Luellen Jaeger, Doing Business as Alt Jay Realty Co., Respondent. (And a Third-Party Action.)

[52 NYS3d 342]

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered May 4, 2015, which, to the extent appealed from, inter alia, denied defendant the City of New York’s motion for summary judgment dismissing the complaint and cross claims against it, unanimously reversed, on the law, without costs, and the City’s motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff allegedly fell when his foot became caught in a crack on a sidewalk in front of a building owned by defendant Jaeger. The crack was next to a metal plate, or marker, owned by the City. The City is entitled to summary judgment, because it established that it did not have prior written notice of the alleged defective sidewalk and that none of the exceptions to the statutory rule requiring such notice applied (see Administrative Code of City of NY § 7-201 [c] [2]; Amabile v City of Buffalo, 93 NY2d 471 , 474 [1999]). The marker on the sidewalk did not confer a special use or benefit upon the City, and

p. 558

therefore the “special use” exception does not apply (see Amabile, 93 NY2d at 474 ; see also Oboler v City of New York, 8 NY3d 888 , 890 [2007]; Chambers v City of New York, 147 AD3d 471 [1st Dept 2017]).

Concur — Friedman, J.P., Renwick, Moskowitz, Feinman and Kapnick, JJ.

Cases cited

Amabile v. City of Buffalo 93 NY2d 471 N.Y. 1999-06-08 at 474 p. 557
Oboler v. City of New York 8 NY3d 888 N.Y. 2007-03-22 at 890 p. 558
Chambers v. City of New York 147 AD3d 471 N.Y. App. Div. 2017-02-10 p. 558