Carbo v. City of New York

275 A.D.2d 439, 713 N.Y.S.2d 74, 2000 N.Y. App. Div. LEXIS 8936

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 28, 2000
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Weiss, J.), dated August 13, 1998, which, upon the granting of the motion of the defendant City of New York pursuant to CPLR 4401, made at the close of the plaintiffs case, for judgment as a matter of law dismissing the complaint insofar as asserted against it for failure to establish a prima facie case, is in favor of that defendant and against it.

Ordered that the judgment is affirmed, with costs.

The plaintiff alleged that she fell over a raised section of a trench repair while riding her bicycle in the parking lane of Utopia Parkway. At trial, the plaintiffs expert conceded that the repair work performed at the site took place possibly 8 to 10 years before the accident and could have been performed by an entity other than the City of New York.

There is no evidence that a dangerous condition existed when the repair was completed, or that the City of New York created the condition (see, Capobianco v Mari, 272 AD2d 497). Further, the plaintiffs expert merely speculated that the work may have been performed by the City of New York. Accordingly, the Supreme Court properly granted the motion of the City of New York for judgment as a matter of law dismissing the complaint insofar as asserted against it at the conclusion of the plaintiffs case (see, Humphreys v Veneziano, 268 AD2d 461). Krausman, J. P., Goldstein, Feuerstein and Smith, JJ., concur.