Green v. City of New York

233 A.D.2d 295, 649 N.Y.S.2d 171, 1996 N.Y. App. Div. LEXIS 11542

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 4, 1996
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Price, J.), dated March 8, 1995, as, upon reargument, adhered to its prior determination granting the motion of the defendant City of New York for summary judgment dismissing the complaint insofar as it is asserted against it.

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

The plaintiff alleges that he sustained personal injuries when his motorcycle hit a manhole cover which was protruding as a result of uncompleted work done on the roadway. Although prior written notice of this alleged defect was not provided to the City of New York (hereinafter the City), the plaintiff claims that such notice was not required because the City created the dangerous condition (see, Monteleone v Incorporated Vil. of Floral Park, 74 NY2d 917).

We find that the plaintiff has failed to produce evidence sufficient to raise a triable issue of fact with respect to whether the City created the alleged defect (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman v City of New York, 49 NY2d 557, 562). The records of the Department of Environmental Protection, Bureau of Sewers, indicating that the sewer in the vicinity had been flushed just prior to the accident failed to establish that the City had caused the defect around the manhole cover. Rosenblatt, J. P., Thompson, Santucci and Altman, JJ., concur.