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Haxhaj v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 22, 2009

ZARAH HAXHAJ, ETC., ET AL., PLAINTIFFS-APPELLANTS,
v.
THE CITY OF NEW YORK, DEFENDANT, THE CENTRAL PARK CONSERVANCY, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered May 5, 2008, which granted the motion of defendant Central Park Conservancy (CPC) to set aside the verdict, unanimously affirmed, without costs.

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.

Gonzalez, P.J., Tom, Sweeny, Freedman, Abdus-Salaam, JJ.

109624/03

Plaintiffs were unable to show that defendant City, whose duty to maintain its roads and highways in a reasonably safe condition is non-delegable (see Lopes v Rostad, 45 NY2d 617, 623 [1978]; McAllen v City of New York, 270 AD2d 43 [2000]), had prior written notice of the alleged defect in the pathway (Administrative Code § 7-201[c]), or that either defendant had created the defect through its own affirmative negligence. They further failed to demonstrate that any circumstances exist under which CPC, a contractor, could have owed a duty of care to them (see Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002]). The agreement between the defendants did not indicate that CPC assumed any duty of the City to maintain the premises in a safe condition.

We have considered plaintiffs' remaining contentions and find them unavailing.

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

20091222

© 1992-2009 VersusLaw Inc.



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