

Martin v City of New York (2018 NY Slip Op 01138)





Martin v City of New York


2018 NY Slip Op 01138


Decided on February 15, 2018


Appellate Division, First Department


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.



Decided on February 15, 2018

Friedman, J.P., Tom, Mazzarelli, Singh, JJ.


5730 156115/13

[*1]Serlene Martin, Plaintiff-Appellant, 
vThe City of New York, Defendant-Respondent.


Law Office of Ryan S. Goldstein, P.L.L.C., Bronx (Ryan Goldstein of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondent.

Order, Supreme Court, New York County (Margaret A. Chan, J.), entered July 19, 2016, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Summary judgment was properly granted in this action where plaintiff alleges that she was injured when she tripped and fell on a hole at a curb. The record shows that defendant City lacked prior written notice of the alleged defect (Administrative Code of City of NY § 7-201[c][2]), and plaintiff failed to raise a triable issue of fact as to whether the City caused or created the hole in the curb (see Brown v City of New York, 150 AD3d 615 [1st Dept 2017]). Her expert's assertions that the City negligently installed the pedestrian ramp and curb, or had negligently repaired the area sometime before the accident, were speculative and unsupported by the record (see Epperson v City of New York, 133 AD3d 522, 523 [1st Dept 2015]). Furthermore, plaintiff's expert failed to establish how the installation of the pedestrian ramp and curb, or a subsequent repair to the area, immediately resulted in the hole that caused the accident so as to bring the alleged defect out of the ambit of ordinary wear and tear (Yarborough v City of New York, 10 NY3d 726, 728 [2008]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 15, 2018
CLERK


