| Donnellan v City of New York |
| 2013 NY Slip Op 08403 [112 AD3d 780] |
| December 18, 2013 |
| Appellate Division, Second Department |
| Barbara Donnellan et al., Appellants, v City ofNew York et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart andMarta Ross of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal froman order of the Supreme Court, Kings County (Velasquez, J.), entered March 28, 2012,which granted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motionfor summary judgment dismissing the complaint is denied.
On July 18, 2009, the injured plaintiff, Barbara Donnellan, allegedly tripped and fellon the Coney Island Boardwalk in Brooklyn, near its West 32nd Street exit ramp. Theinjured plaintiff claimed that the accident occurred as a result of loose and raised boardson the boardwalk. In the notice of claim served upon the defendants, the injured plaintiffmore specifically identified the location of the accident as "the Coney Island boardwalkthirty-two (32) feet directly north of the light pole and ninety-two (92) feet from the exitramp on the boardwalk leading to West 32nd Street." The defendants moved forsummary judgment dismissing the complaint, arguing that they did not receive priorwritten notice of the defective condition alleged by the injured plaintiff as required by theAdministrative Code of the City of New York § 7-201 (c). The Supreme Courtgranted the motion.
Where a municipality has enacted a prior written notice statute, it may not besubjected to liability for injuries caused by an improperly maintained street or sidewalkunless it has received prior written notice of the dangerous condition, or an exception tothe prior written notice requirement applies (see Amabile v City of Buffalo, 93NY2d 471, 474 [1999]; Miller vVillage of E. Hampton, 98 AD3d 1007, 1008 [2012]; De La Reguera v City of MountVernon, 74 AD3d 1127, 1127 [2010]; Schleif v City of New York, 60 AD3d 926, 927-928[2009]). Pursuant to New York City Administrative Code § 7-201 (c) (1) (b), "theterm 'sidewalk' shall include a boardwalk." The only recognized exceptions to thestatutory prior written notice requirement involve situations in which the municipalitycreated the defect or hazard through an affirmative act of negligence, or where a specialuse confers a benefit upon the municipality (see Amabile v City of Buffalo, 93NY2d at 474; Poirier v City of Schenectady, 85 NY2d 310, 314-315 [1995]).
Here, the defendants established their prima facie entitlement to judgment as a matter[*2]of law by presenting evidence that they did notreceive prior written notice of the condition on the Coney Island Boardwalk thatallegedly caused the injured plaintiff's injuries (see Groninger v Village of Mamaroneck, 17 NY3d 125,129 [2011]; cf. Bruni vCity of New York, 2 NY3d 319 [2004]). However, in opposition, the plaintiffsraised a triable issue of fact as to whether the defendants were provided with priorwritten notice of the condition which allegedly caused the injured plaintiff to trip and fall(see Weinreb v City of New York, 193 AD2d 596, 597 [1993]; cf., Arcabascio v City of NewYork, 91 AD3d 684 [2012]). In particular, the plaintiff submitted a "SiteInspection Report" regarding the Coney Island boardwalk, which was prepared by thedefendant New York City Department of Parks and Recreation on June 3, 2009,approximately five weeks before the injured plaintiff's accident. The report contained 21photographs of various locations on the boardwalk, including one which was captioned"trip hazard due to uplifted boardwalk slat east of W32nd St." The report also indicatedthat the overall condition of the boardwalk in this area was "U" for unsatisfactory.
Furthermore, while the injured plaintiff's testimony at the hearing held pursuant toGeneral Municipal Law § 50-h did not describe the accident location as being eastor west of the West 32nd Street ramp, her deposition testimony suggests that she wasslightly east of the subject ramp when the accident took place. To the extent that " 'thereare factual disputes regarding the precise location of the defect that allegedly caused aplaintiff's fall, and whether the alleged defect is designated on the [site inspection report],the question should be resolved by a jury' " (Almadotter v City of New York, 15 AD3d 426, 427[2005], quoting Quinn v City of New York, 305 AD2d 570, 571 [2003]). Therealso remains a triable issue of fact regarding the injured plaintiff's claim that the subjectdefect was affirmatively and immediately created by the defendants' method ofconstructing the boardwalk (seeSan Marco v Village/Town of Mount Kisco, 16 NY3d 111 [2010]).Accordingly, the defendants' motion for summary judgment dismissing the complaintshould have been denied (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).Skelos, J.P., Balkin, Leventhal and Sgroi, JJ., concur.