OLDER BIG APPLE POTHOLE MAP BEATS NEWER MAP; VICTIM OF TRIP-AND-FALL SIDEWALK ACCIDENT LOSES TO NEW YORK CITY--NO "PRIOR WRITTEN NOTICE"

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Adamson v. City of New York

Date: Sept. 27, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens Bronx; Queens personal injury attorney)

Comment: There's an interesting background story that should be told here; not directly about this particular case, but it should give you some context or overview for this sidewalk trip-and-fall accident lawsuit.

Once upon a time, the City of New York enacted a rule that required "prior written notice" of a sidewalk or street defect as a pre-condition to suing it for a trip-and-fall accident or injury. Hardly ever was this condition met. Simply put, no one ever wrote to the City of New York, to the correct department of the correct agency, before an accident happened.

So the New York State Trial Lawyers Association put its members' brains together and came up with a brilliant idea. Its members formed the Big Apple Pothole & Sidewalk Protection company, which hired teams of people to walk the City's sidewalks with huge books of Department of Transportation maps. These people would mark sidewalk defects on the maps with codes to show, for example, raised sidewalks, broken sidewalks, missing curbs, and so forth.

These huge books of maps were then filed with New York City's Department of Transportation to show "prior written notice" of a defective sidewalk condition. The City of New York resisted mightily saying, in effect, "You can't expect us to read these darn map books"! But the courts upheld the map submission process. So whenever a plaintiff was hurt on a sidewalk, his or her attorney would write to Big Apple Pothole & Sidewalk Protection and, for a fee, get a copy of the appropriate map. And these fees kept Big Apple Pothole & Sidewalk Protection going and was good for the sidewalk-injured accident victims of New York City. And once in a great while the City actually fixed a sidewalk. (Big Apple Pothole & Sidewalk Protection did not map roadway or street defects.)

A few years back the City of New York, tired of being sued for sidewalk defects, passed the buck by changing the rule. Commercial property owners and owners of buildings with more than a few apartments became responsible for their own sidewalks and could be sued for sidewalk accidents. This saves the City a whale of a lot of money, but put Big Apple Pothole & Sidewalk Protection, essentially, out of business. We can still get maps, but they're old maps and eventually (I predict) the courts will find that they're useless because they're too old.

Now to this case.

Plaintiff/accident-victim submitted a map from 2002 showing a sidewalk defect. The City of New York submitted a 2004 map showing no defect where the plaintiff fell. The appeals court granted summary judgment to the City of New York, holding "no prior written notice."

***************************************

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Velasquez, J.), dated May 25, 2010, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.

On December 4, 2007, the plaintiff allegedly sustained personal injuries when she tripped and fell over a raised portion of a public sidewalk while walking in front of certain residences in Brooklyn (hereinafter the subject location). She commenced this action against the defendant, City of New York, alleging negligence for failing to maintain the sidewalk at the subject location in a reasonably safe condition. Following joinder of issue, the City moved for summary judgment dismissing the complaint, contending that it lacked prior written notice of the alleged sidewalk defect. It submitted, inter alia, a map prepared by the Big Apple Pothole & Sidewalk Protection Committee (hereinafter Big Apple) that was on file with the New York City Department of Transportation (hereinafter the DOT) dated February 2, 2004 (hereinafter the 2004 Map), which did not show any sidewalk defects at the subject location. In opposition, the plaintiff submitted a Big Apple map that was on file with the DOT dated December 18, 2002 (hereinafter the 2002 Map), which showed, among other things, a raised or uneven portion of sidewalk at the subject location. The plaintiff also noted that both maps have identical stamps on them which read: "This map does not supersede any previously filed notice of a defective, unsafe, dangerous or obstructed condition." The Supreme Court denied the City's motion and, relying on these stamps, held, inter alia, that there were triable issues of fact as to whether the City had prior written notice of the sidewalk defect alleged to have caused the plaintiff's injuries. We reverse.

Prior written notice of a sidewalk defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City (see Administrative Code of City of N.Y. Sec. 7-201[c] [2]; Katz v. City of New York, 87 N.Y.2d 241, 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374; Bradley v. City of New York, 38 A.D.3d 581, 832 N.Y.S.2d 257). "The failure to demonstrate prior written notice leaves plaintiff without legal recourse against the City for its purported nonfeasance or malfeasance in remedying a defective sidewalk" (Cuccia v. City of New York, 22 A.D.3d 516, 516, 801 N.Y.S.2d 771, quoting Katz v. City of New York, 87 N.Y.2d at 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374). Further, Big Apple maps are independent records prepared by Big Apple and for the purposes of prior written notice, the City properly requires that prior notice be traced to the most current Big Apple map on file, i.e., the map that is closest in time to the date a defect is alleged to have caused an accident (Katz v. City of New York, 87 N.Y.2d at 244, 638 N.Y.S.2d 593, 661 N.E.2d 1374).

Here, the City demonstrated, prima facie, that it lacked prior written notice, as the 2004 Map did not show any sidewalk defects at the subject location, and the Supreme Court erred in determining that the plaintiff raised a triable issue of fact in response. Contrary to the plaintiff's contentions, even where a Big Apple map is stamped with a notation that it does not supersede any prior maps, it is nevertheless the map filed closest in time to the accident at issue that controls for the purpose of establishing prior written notice (see Carvajal v. City of New York, 7 Misc.3d 509, 514, 794 N.Y.S.2d 574). Based upon the policy considerations identified by the Court of Appeals in Katz, to wit, the concerns relating to the mechanics of the filing system, the reasonable expectations of the parties, and the view that the later dated map most accurately portrays the area on the date of the accident (see Katz v. City of New York, 87 N.Y.2d at 244-245, 638 N.Y.S.2d 593, 661 N.E.2d 1374), the Supreme Court should have granted the City's motion for summary judgment dismissing the complaint.

Categories