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Boniello v. City of New York

Supreme Court of New York, First Department

May 23, 2013

Kim Boniello, Plaintiff-Appellant,
v.
The City of New York, Defendant-Respondent.

Decolator, Cohen & DiPrisco, LLP, Garden City (John V. Decolator of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Elizabeth I. Freedman of counsel), for respondent.

Tom, J.P., Mazzarelli, Saxe, Moskowitz, Manzanet-Daniels, JJ.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered September 16, 2011, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Dismissal of the complaint was proper since plaintiff failed to raise a triable issue of fact concerning defendant's prior notice of the defect which plaintiff alleged caused her to fall (see Administrative Code § 7-201[c]). Although documents produced by defendant indicated that multiple 311 calls resulted in an inspection by defendant's employees and a determination that a dangerous condition existed in the vicinity of plaintiff's accident (see Bruni v City of New York, 2 N.Y.3d 319, 326-327 [2004]), there is a lack of evidence that the defect was the one which caused plaintiff's fall (see Roldan v City of New York, 36 A.D.3d 484, 484 [1st Dept 2007] ["(t)he awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident"]).


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