Opinion
12162 Index No. 154324/16 Case No. 2019-4819
10-22-2020
Bella FUNKELSTEIN, Plaintiff-Appellant, v. The CITY OF NEW YORK, Defendant-Respondent.
Law Office of Alan D. Levine, Kew Gardens (Alan D. Levine of counsel), for appellant. James E. Johnson, Corporation Counsel, New York (Kevin Osowski of counsel), for respondent.
Law Office of Alan D. Levine, Kew Gardens (Alan D. Levine of counsel), for appellant.
James E. Johnson, Corporation Counsel, New York (Kevin Osowski of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Gesmer, Oing, JJ.
Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about May 2, 2019, which granted defendant the City of New York's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. Plaintiff commenced this action for personal injuries she allegedly sustained when she tripped and fell on a metal cover owned by the City, which housed a pull box that was used to power pedestrian and vehicular traffic lights. Plaintiff concedes that the City did not have prior written notice of the alleged defect and does not argue that the City created the defect through an affirmative act of negligence. She argues, however, that since the City had a duty to repair the defective metal cover under 34 RCNY 2–07(b), no prior written notice was required. We reject this argument. Section 7–210 of the New York City Administrative Code requires plaintiff to show that the City received prior written notice of the alleged defect, in violation of 34 RCNY 2–07(b) (see Tucker v. City of New York, 84 A.D.3d 640, 642–643, 923 N.Y.S.2d 525 [1st Dept. 2011], lv denied 17 N.Y.3d 713, 2011 WL 4916547 [2011] ; see also Gavigan v. City of New York, 99 A.D.3d 559, 560, 952 N.Y.S.2d 182 [1st Dept. 2012] ).
We also reject plaintiff's alternate argument that prior written notice of the alleged defect was not required because the City made special use of the portion of the area where the metal cover was located and derived a special benefit from its use. As plaintiff acknowledges, the metal cover contained a pull box that was used for operating and providing power to pedestrian and vehicular traffic signals in the vicinity. Such use by the City did not provide it with a special benefit unrelated to the public use (see Aleksandrova v. City of New York, 151 A.D.3d 427, 428, 52 N.Y.S.3d 866 [1st Dept. 2017] ; Chambers v. City of New York, 147 A.D.3d 471, 472, 47 N.Y.S.3d 17 [1st Dept. 2017] ).