Anderson v. CD Fleetwood Associates, LLC , 917 N.Y.2d 895 ( 2011 )

The defendant City of Mount Vernon submitted evidence sufficient to establish, prima facie, that it did not have prior written notice of the alleged hole in the sidewalk which proximately caused the plaintiff to fall (see De La Reguera v City of Mount Vernon, 74 AD3d 1127 [2010]; Trinidad v City of Mount Vernon, 51 AD3d 661 [2008]; Regan v City of New York, 8 AD3d 462 [2004]). However, in opposition to the City’s cross motion for summary judgment, the plaintiff raised a triable issue of fact as to whether the City affirmatively created the alleged defect by removing a parking meter from the sidewalk (see Cabrera v City of New York, 21 AD3d 1047 [2005]).

The City’s remaining contentions are without merit.

Accordingly, the Supreme Court properly denied that branch of the City’s cross motion which was for summary judgment dismissing the complaint insofar as asserted against it. Skelos, J.E, Balkin, Leventhal and Hall, JJ., concur.