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Decided on August 23, 2010
Supreme Court, New York County

107545/08

For plaintiff:
Jason S. Krakower, Esq.
Raphaelson & Levine Law Firm, P.C.
Pennsylvania Building
14 Penn Plaza, Suite 1718
New York, NY 10122

212-268-3222 For defendant City: Andrew Lucas, ACC Michael A. Cardozo Corporation Counsel 100 Church Street New York, NY 10007 212-442-6855 Barbara Jaffe, J.
By notice of motion dated March 30, 2010, defendants City of New York and New York City Department of Transportation (DOT) (collectively, City) move pursuant to CPLR 3211(a)(7) for an order dismissing the claims against them, or alternatively, pursuant to CPLR 3212, for an order summarily dismissing the complaint. As defendants offer no factual or legal basis for a dismissal pursuant to CPLR 3211(a)(7), only the motion pursuant to CPLR 3212 is addressed. (See Kane v City of New York, Sup Ct, New York County, May 14, 2010, Jaffe, J., Index No. 103963/07).
I. UNDISPUTED FACTUAL BACKGROUND
On August 24, 2007, plaintiff stepped off the sidewalk on the southwest corner of Lenox [*2]Avenue and 125th Street, tripped on a defect in the street, and fell. (Affirmation of Andrew Lucas, Esq., dated March 30, 2010 [Lucas Aff.], Exh. A). In her notice of claim, plaintiff alleges
that the defect was three inches deep, approximately 29 feet north of the corner, two feet from
the curb line, and approximately 44 feet west of the cement median which divides Lenox Avenue. (Id.). At a hearing held pursuant to General Municipal Law

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