| Flynn v City of New York |
| 2017 NY Slip Op 07172 |
| Decided on October 12, 2017 |
| 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 October 12, 2017
Tom, J.P., Renwick, Andrias, Singh, Moulton, JJ.
4639 159326/14
v
The City of New York, et al., Defendants-Respondents.
Alexander J. Wulwick, New York, for appellant.
Zachary W. Carter, Corporation Counsel, New York (Ellen Ravitch of counsel), for respondents.
Order, Supreme Court, New York County (Margaret A. Chan, J.), entered September 13, 2016, which, insofar as appealed from as limited by the briefs, granted defendants' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Upon defendants' establishment that the City of New York had no prior written notice of the alleged depressed condition of a metal plate on the roadway (Administrative Code § 7-201[c][2]), "the burden shift[ed] to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule — that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality" (Yarborough v City of New York, 10 NY3d 726, 728 [2008]; see also Rosenblum v City of New York, 89 AD3d 439 [1st Dept 2011]). Plaintiff's speculation that the City's repaving work in the area, three and a half years earlier, immediately caused the alleged depressed and dangerous condition, is insufficient to create a triable issue of fact (see Oboler v City of New York, 8 NY3d 888, 889 [2007]; Rosenblum at 440).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 12, 2017
CLERK