Stein v. City of New York , 148 A.D.3d 562 ( 2017 )

Stein v City of New York (2017 NY Slip Op 02131)

Stein v City of New York

2017 NY Slip Op 02131

Decided on March 23, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 23, 2017
Friedman, J.P., Renwick, Richter, Moskowitz, Kapnick, JJ.

2825 104943/11

[*1]Eileen Stein, Plaintiff-Appellant,

v

The City of New York, Defendant-Respondent, Consolidated Edison Company of New York, Inc., et al., Defendants.

David Horowitz, P.C., New York (Piotr M. Burdzy of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Jeremy W. Shweder of counsel), and Willkie Farr & Gallagher LLP, New York (Alexander L. Cheney of counsel), for respondent.

Order, Supreme Court, New York County (Frank P. Nervo, J.), entered February 20, 2015, which granted the motion of defendant City of New York for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.

The City established its entitlement to judgment as a matter of law in this action where plaintiff alleges that she was injured when, while crossing the street within the crosswalk, she tripped and fell in a pothole. The City submitted evidence showing that it neither created nor had written notice of the defective condition that caused plaintiff to fall (Administrative Code of City of NY § 7-201[c]; see e.g. Rosenblum v City of New York, 89 AD3d 439 [1st Dept 2011]).

In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff offers only speculation that further discovery may yield evidence that raises a triable issue (see e.g. First City Natl. Bank and Trust Co. v Heaton, 165 AD2d 710, 712 [1st Dept 1990]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 23, 2017

CLERK