Pena v. City of Yonkers, 82 A.D.3d 728

The infant plaintiff allegedly was injured when her right foot came into contact with a piece of metal protruding from the grassy area of a public sidewalk.

The defendant, City of Yonkers, established its prima facie entitlement to judgment as a matter of law by submitting evidence sufficient to demonstrate that it did not have prior written notice of the alleged defect (see Charter of City of Yonkers § C24-11; Lawler v City of Yonkers, 45 AD3d 813 [2007]; Rochford v City of Yonkers, 12 AD3d 433 [2004]). In opposition, the plaintiffs failed to raise a triable issue of fact because they offered only speculation that the defendant created the alleged defect (see Patti v Town of N. Hempstead, 23 AD3d 362 [2005]; Regan v City of New York, 8 AD3d 462 [2004]). Accordingly, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.

Covello, J.P., Chambers, Lott and Cohen, JJ., concur.

Case Details

Case Name: Pena v. City of Yonkers

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Mar 1, 2011

Citations: 82 A.D.3d 728; 917 N.Y.2d 903

Court Abbreviation: N.Y. App. Div.