| Adamson v City of New York |
| 2011 NY Slip Op 06812 [87 AD3d 1088] |
| September 27, 2011 |
| Appellate Division, Second Department |
| Carol Adamson, Respondent, v City of New York,Appellant. |
—[*1] Jay R. Viders, PLLC, Commack, N.Y. (Jared M. Viders of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Velasquez, J.), dated May 25, 2010, which denied its motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is granted.
On December 4, 2007, the plaintiff allegedly sustained personal injuries when she trippedand fell over a raised portion of a public sidewalk while walking in front of certain residences inBrooklyn (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 locationin a reasonably safe condition. Following joinder of issue, the City moved for summary judgmentdismissing the complaint, contending that it lacked prior written notice of the alleged sidewalkdefect. It submitted, inter alia, a map prepared by the Big Apple Pothole & Sidewalk ProtectionCommittee (hereinafter Big Apple) that was on file with the New York City Department ofTransportation (hereinafter the DOT) dated February 2, 2004 (hereinafter the 2004 Map), whichdid not show any sidewalk defects at the subject location. In opposition, the plaintiff submitted aBig Apple map that was on file with the DOT dated December 18, 2002 (hereinafter the 2002Map), which showed, among other things, a raised or uneven portion of sidewalk at the subjectlocation. The plaintiff also noted that both maps have identical stamps on them which read: "Thismap does not supersede any previously filed notice of a defective, unsafe, dangerous orobstructed 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 writtennotice 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 requiredto plead and prove to maintain an action against the City (see Administrative Code ofCity of NY § 7-201 [c] [2]; Katz v City of New York, 87 NY2d 241, 243 [1995];Bradley v City of New York, 38AD3d 581 [2007]). " 'The failure to demonstrate prior written notice leaves plaintiff withoutlegal recourse against the City for its purported nonfeasance or malfeasance in remedying adefective sidewalk' " (Cuccia v City ofNew York, 22 AD3d 516, 516 [2005], quoting Katz v City of New York, 87NY2d at 243). Further, Big Apple maps "are independent records prepared by Big Apple" and forthe purposes of prior written notice, "the City properly requires that prior notice be traced to themost current Big Apple map on file, i.e., the map that is closest in time to the date a defect isalleged to have caused an accident" (Katz v City of New York, 87 NY2d at 244).
Here, the City demonstrated, prima facie, that it lacked prior written notice, as the 2004 Mapdid not show any sidewalk defects at the subject location, and the Supreme Court erred indetermining that the plaintiff raised a triable issue of fact in response. Contrary to the plaintiff'scontentions, even where a Big Apple map is stamped with a notation that it does not supersedeany prior maps, it is nevertheless the map filed closest in time to the accident at issue thatcontrols for the purpose of establishing prior written notice (see Carvajal v City of New York, 7 Misc 3d 509, 514 [2005]).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 theparties, and the view that the later dated map most accurately portrays the area on the date of theaccident (see Katz v City of New York, 87 NY2d at 244-245), the Supreme Court shouldhave granted the City's motion for summary judgment dismissing the complaint. Rivera, J.P.,Florio, Leventhal and Roman, JJ., concur.