Spencer v. City of New York , 149 A.D.3d 557 ( 2017 )

Spencer v City of New York (2017 NY Slip Op 02951)

Spencer v City of New York

2017 NY Slip Op 02951

Decided on April 18, 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 April 18, 2017
Friedman, J.P., Renwick, Moskowitz, Feinman, Kapnick, JJ.

3768 117844/09 590577/11

[*1]Derrick Spencer, Plaintiff-Respondent,

v

The City of New York, Defendant-Appellant,



Luellen Jaeger doing business as Alt Jay Realty Co., Defendant-Respondent.

[And a Third-Party Action]

Zachary W. Carter, Corporation Counsel, New York (Melanie T. West of counsel), for appellant.

Ephrem J. Wertenteil, New York, for Derrick Spencer, respondent.

Gannon, Rosenfarb & Drossman, New York (Lisa L. Gokhulsingh of counsel), for Luellen Jaeger, respondent.

Order, Supreme Court, New York County (Kathryn E. Freed, J.), entered May 4, 2015, which, to the extent appealed from, inter alia, denied defendant the City of New York's motion for summary judgment dismissing the complaint and cross claims against it, unanimously reversed, on the law, without costs, and the City's motion granted. The Clerk is directed to enter judgment accordingly.

Plaintiff allegedly fell when his foot became caught in a crack on a sidewalk in front of a building owned by defendant Jaeger. The crack was next to a metal plate, or marker, owned by the City. The City is entitled to summary judgment, because it established that it did not have prior written notice of the alleged defective sidewalk and that none of the exceptions to the statutory rule requiring such notice applied (see Administrative Code of City of NY § 7-201[c][2]; Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]). The marker on the sidewalk did not confer a special use or benefit upon the City, and therefore the "special use" exception does not apply (see Amabile, 93 NY2d at 474; see also Oboler v City of New York, 8 NY3d 888, 890 [2007]; Chambers v City of New York, 147 AD3d 471 [1st Dept 2017]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 18, 2017

CLERK