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Lindsay v. City of Mount Vernon

Supreme Court of New York, Second Department

August 21, 2013

Valerie Lindsay, respondent,
v.
City of Mount Vernon, appellant, et al., defendant. (Index No. 17696/09)

Nichelle A. Johnson, Corporation Counsel, Mount Vernon, N.Y. (Brian G. Johnson of counsel), for appellant.

Dervishi, Levine & Morgan, P.C., New York, N.Y. (Matthew Tomkiel of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant City of Mount Vernon appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered March 16, 2012, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On its motion for summary judgment dismissing the complaint insofar as asserted against it, the defendant City of Mount Vernon met its prima facie burden of establishing its entitlement to judgment as a matter of law by providing evidence that it did not receive prior written notice of the defective sidewalk condition upon which the plaintiff allegedly tripped, as required pursuant to section 265 of the Charter of the City of Mount Vernon (see Smith v City of Mount Vernon, 101 A.D.3d 847; Romano v Village of Mamaroneck, 100 A.D.3d 854, 855; Wiley v Incorporated Vil. of Garden City, 91 A.D.3d 764, 765; LiFrieri v Town of Smithtown, 72 A.D.3d 750, 752; Koehler v Incorporated Vil. of Lindenhurst, 42 A.D.3d 438; Silburn v City of Poughkeepsie, 28 A.D.3d 468, 469), and that it did not create the alleged dangerous condition through an affirmative act of negligence (see Romano v Village of Mamaroneck, 100 A.D.3d at 855; Cuebas v City of Yonkers, 97 A.D.3d 779, 780; cf. Braver v Village of Cedarhurst, 94 A.D.3d 933).

In opposition, however, the plaintiff raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). The Supreme Court properly concluded that the transcript of the deposition of Anthony Amiano, a skilled laborer employed by the City for approximately 20 years whose job duties included handling all notices of claim received by the City, checking the City's records for prior notices and complaints, inspecting the areas complained of in the notices of claim, and overseeing the paving in the City, raised a triable issue of fact as to whether the City, through an affirmative act of negligence, created the asphalt patch on the sidewalk over which the plaintiff allegedly tripped and fell.

Accordingly, the Supreme Court properly denied the City's motion for summary judgment dismissing the complaint insofar as asserted against it.

ANGIOLILLO, J.P., CHAMBERS, ROMAN and HINDS-RADIX, JJ., concur.


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