Henrickson v. City of New York

285 A.D.2d 529, 727 N.Y.S.2d 659, 2001 N.Y. App. Div. LEXIS 7485

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an amended order of the Supreme Court, Richmond County (Minardo, J.), dated August 30, 2000, which, after a nonjury trial, in effect, granted the defendant’s motion made at the close of the evidence to dismiss the complaint on the grounds that the notice of claim was defective and that the plaintiff failed to prove prior written notice.

Ordered that the amended order is affirmed, with costs.

The Supreme Court properly granted the defendant’s motion to dismiss the complaint. Constructive notice óf a defect may not override the statutory requirement of prior written notice to a municipality (see, Amabile v City of Buffalo, 93 NY2d 471). In addition, alleged defects in the roadway, which were inherently transitory in nature, required greater specificity in the notice of claim description (see, Burgos v City of New York, 280 AD2d 444; Earle v Town of Oyster Bay, 247 AD2d 357; Fendig v City of New York, 132 AD2d 520; Caselli v City of New York, 105 AD2d 251).

The plaintiffs contention that the defendant’s motion in limine was an inappropriate attempt to obtain summary judgment on the eve of trial is not dispositive because the Supreme Court essentially converted the motion into a motion to dismiss the complaint after hearing all of the evidence. Altman, J. P., Friedmann, Smith and Adams, JJ., concur.