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Alvino v. City of New York

49 A.D.3d 676 Court N.Y. App. Div. Decision date 2008-03-18 English

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p. 676
(March 18, 2008)
Christopher Alvino, Respondent, v City of New York, Appellant.
[853 NYS2d 666]

The plaintiff commenced this action to recover damages from the defendant City of New York for injuries allegedly sustained when he stepped on a loose metal plate on the sidewalk and fell into a hole. The City cannot be held liable for a defect in a sidewalk unless, inter alia, it received written notice of the defect, or made a written acknowledgment of the condition, and failed to remedy the condition within 15 days after the notification or acknowledgment (see Administrative Code of City of NY § 7-201 [c] [2]; Bruni v City of New York, 2 NY3d 319 , 324-326 [2004]). Here, while there was a written acknowledgment of the defect from the City, the accident occurred within the 15-day grace period (see Kruszka v City of New York, 29 AD3d 742 , 743 [2006]; Silva v City of New York, 17 AD3d 566 , 567 [2005]).

p. 677
In opposition to the City’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether one of the exceptions to the prior notice requirement was applicable (see Amabile v City of Buffalo, 93 NY2d 471 [1999]). There is no evidence that the City either created the defective condition or made special use of the area (see Oboler v City of New York, 8 NY3d 888 , 889-890 [2007]; Kruszka v City of New York, 29 AD3d at 743 ; Silva v City of New York, 17 AD3d at 567 ).

Consequently, the Supreme Court should have granted the City’s cross motion for summary judgment dismissing the complaint (see Kruszka v City of New York, 29 AD3d at 743 ; Silva v City of New York, 17 AD3d at 567 ). Mastro, J.P., Covello, Eng and Belen, JJ., concur.

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