Messina v. City of New York

Appellate Division of the Supreme Court of New York

Messina v. City of New York

190 A.D.2d 659, 593 N.Y.S.2d 72, 1993 N.Y. App. Div. LEXIS 848

Appellate Division of the Supreme Court of the State of New York·Decided February 1, 1993·Published·Cited by 7 cases

Opinion

— In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Nahman, J.), dated June 29, 1990, which, upon a ruling granting the respondent’s motion pursuant to CPLR 4401 to dismiss the complaint at the close of the plaintiffs’ case for failure to present a prima facie case, is in favor of the respondent and against them.

Ordered that the judgment is affirmed, with costs.

In this action to recover damages caused by an allegedly defective condition in a roadway, the court properly granted the respondent’s motion pursuant to CPLR 4401 to dismiss the complaint on the ground that the City had not received prior written notice of the condition as required by Administrative Code of the City of New York § 7-201 (c) (2). Although prior written notice is not required where it is claimed that the municipality was affirmatively negligent in causing or creating the defective condition (see, Kiernan v Thompson, 73 NY2d 840, 841-842; Zash v County of Nassau, 171 AD2d 743, 745), there was no proof that the independent contractor hired by the City created the condition complained of (cf, Combs v Incorporated Vil. of Freeport, 139 AD2d 688). Eiber, J. P., O’Brien, Ritter and Copertino, JJ., concur.

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— In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Nahman, J.), dated June 29, 1990, which, upon a ruling granting the respondent’s motion pursuant to CPLR 4401 to dismiss the complaint at the close of the plaintiffs’ case for failure to present a prima facie case, is in favor of the respondent and against them.

Ordered that the judgment is affirmed, with costs.

In this action to recover damages caused by an allegedly defective condition in a roadway, the court properly granted the respondent’s motion pursuant to CPLR 4401 to dismiss the complaint on the ground that the City had not received prior written notice of the condition as required by Administrative Code of the City of New York § 7-201 (c) (2). Although prior written notice is not required where it is claimed that the municipality was affirmatively negligent in causing or creating the defective condition (see, Kiernan v Thompson, 73 NY2d 840, 841-842; Zash v County of Nassau, 171 AD2d 743, 745), there was no proof that the independent contractor hired by the City created the condition complained of (cf, Combs v Incorporated Vil. of Freeport, 139 AD2d 688). Eiber, J. P., O’Brien, Ritter and Copertino, JJ., concur.

Messina v. City of New York, 190 A.D.2d 659, 593 N.Y.S.2d 72, 1993 N.Y. App. Div. LEXIS 848 (N.Y. Ct. App. 1993).

Pincite

190 A.D.2d 659 (Messina v. City of New York) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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