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BERNADETTE A. LAWLER, Appellant, v. CITY OF YONKERS, Respondent.

Ordered that the order is affirmed, with costs.

The plaintiff allegedly was injured when she tripped and fell on a public sidewalk from which a rock was protruding. According to the plaintiff, the rock protrusion was surrounded by a lumpy and uneven mass of asphalt. She commenced this action to recover damages against the City of Yonkers, the municipal owner of the sidewalk.

The City made a prima facie showing of its entitlement to judgment as a matter of law by demonstrating that it had no prior written notice of the allegedly defective sidewalk condition that caused the plaintiffs injuries ( see General Municipal Law § 50-e; Second Class Cities Law § 244; Charter of the City of Yonkers § C24-11; Amabile v City of Buffalo, 93 NY2d 471; Jacobs v Village of Rockville Ctr., 41 AD3d 539, 540; Giffords v Water Auth. of Great Neck N, 40 AD3d 695, 695-696; Ferreira v County of Orange, 34 AD3d 724, 725; Granderson v City of White Plains, 29 AD3d 739; Gold v County of Westchester, 15 AD3d 439, 440). In opposition, the plaintiff failed to raise a triable issue of fact because she offered only speculation that the City affirmatively created the alleged sidewalk defect ( see Delgado v County of Suffolk, 40 AD3d 575, 576; Khemraj v City of New York, 37 AD3d 419, 420; Ferreira v County of Orange, 34 AD3d 724; Hyland v City of New York, 32 AD3d 822, 823; Gold v County of Westchester, 15 AD3d 439, 440).

The plaintiffs contention that the alleged sidewalk defect constituted a public nuisance is not properly before this Court as it was raised for the first time on appeal ( see Matter of ALU Ins. Co. v Rodriguez, 43 AD3d 1042; Ferreira v County of Orange, 34 AD3d 724, 725).

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LAWLER v. YONKERS
(Nov 27, 2007)