Posted On: June 15, 2012 by Stephen Bilkis

Plaintiff Sues for Trip and Fall Due to Sidewalk Defect

On 11 October 2006, plaintiff was caused to trip and fall upon a defect in the sidewalk in front of 14 Willow Place, Brooklyn, property owned by defendant.

Plaintiff, together with her husband, has filed a verified complaint against defendant and the City of New York on the ground of the aforesaid trip and fall.

The alleged defect is described as "a raised edge of a sidewalk concrete flag and the raised portion of the flag which was located in the pedestrian portion of the sidewalk located approximately 140 feet south of the south curb of Joralemon Street and approximately 2.5 to 3 feet west of the west curb of Willow Place and next to a large tree situated next to the said curb of Willow Place in front of premises 14 Willow Place, Brooklyn, New York, which sidewalk flag was protruding up approximately 3 inches from the rest of the walk on the date concerned.

Photographs of the area showing the defect, the afore-referenced tree and curb line, and the front facade of the premises located at 14 Willow were presented to the court.

A New York Injury Lawyer said with the instant motion, designated a "Motion for Issue Determination," plaintiffs seek an order pursuant to New York City Administrative Code determining that the prior Notice of Claim and litigation concerning the same location of the incident to the plaintiffs do constitute prior written notice of a defective condition in accordance with such statute, and that the condition precedent of Prior Notice has been met by the plaintiffs, and for such other and further relief as the Court deems proper and just.

Pursuant to the Administrative Code of the City of New York, known as the "Pothole Law", the City is not liable for a defect in or obstruction to a sidewalk or roadway unless it had received written notice of the condition at least 15 days prior to the occurrence and failed to remedy it. Indeed, prior written notice of a defect is a condition precedent which plaintiffs are required to plead and prove to maintain an action against the City.

More precisely, the law lists three alternative prerequisites to an action: (1) written notice actually given to the commissioner of transportation' or his designee; (2) previous injury to person or property and written notice given to a city agency; or (3) written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition. Although the three alternatives are somewhat different in language and concept, they all serve the same function: to demonstrate that the responsible city agency knew of the hazard and had an opportunity to remedy it.

Since plaintiff’s fall occurred after 14 September 2003, it is governed by the New Sidewalk Law. Generally, where the property abutting a sidewalk is used for commercial purposes, as is the property at 14 Willow Place, the New Sidewalk Law transfers from the City to the owner of the abutting property liability arising from the failure to maintain the sidewalk, including the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags, while the City remains liable for injury or damage caused by a dangerous condition that the City created through affirmative negligence or its special use of the sidewalk.

The parties here are clearly proceeding on the assumption that the Pothole Law requires prior written notice in this case, notwithstanding the New Sidewalk Law, and the Court will do likewise. Plaintiffs’ verified complaint alleges compliance with the Pothole Law by way of two of the three alternatives specified in the statute, namely: a "Big Apple Map" filed with the Department of Transportation on 23 October 2002; and a notice of claim served on the City by two other plaintiffs (herein “Notice of Claim”), together with a related Supreme Court action, alleging injury by reason of a dangerous condition on the sidewalk in front of 14 Willow Place.

The City's Answer denies in material respects these allegations of prior written notice.

The issue presented, satisfaction of the prior-written-notice condition of Administrative Code, is particularly suited to summary disposition in appropriate cases. A Queens Personal Injury Lawyer said the City and other beneficiaries of a prior-written-notice law regularly move for a summary determination of the issue; that a ruling on the issue in favor of the City will result in dismissal of the action, whereas the plaintiffs, depending on the circumstances, must still prove liability and damages, does not make a summary determination unavailable to the plaintiffs. The statute expressly authorizes judgment on the issue where otherwise appropriate, whether the issue is considered one of law or fact and considerations of efficiency, the courts' as well as the parties', might be served by its resolution sooner rather than later.

On the evidentiary front, the City contends that Plaintiffs "failed to submit evidence in admissible form as required by law and binding judicial authority; specifically, the Notice of Claim is not in admissible form and must be disregarded by the Court. The City does not further detail its evidentiary objection, but there is no question that the Notice of Claim has not been put before the Court by the affidavit or certificate of any person, such as a public officer.

Plaintiffs obtained the Notice of Claim through a request made pursuant to the Freedom of Information Law ("FOIL") (Public Officers Law). The papers on this motion include a copy of a letter dated 21 November 2006 on the letterhead of the Office of the Comptroller, City of New York, from a Confidential Investigator to plaintiffs' counsel; a copy of the Notice of Claim; Plaintiffs' Notice to Admit to Defendant City; and the City's Response to Notice to Admit. The letter refers to the FOIL request and "Prior Notice of Claim and Notice of Claim regarding Willow Place between Joralemon Street and State Street, specifically 14 Willow Place"; states that "a diligent search was conducted by the Comptroller's Bureau of Law and Adjustment (BLA) to determine the number of claims filed with this office alleging accidents occurring at the subject location"; states further that the writer was "informed by BLA that our office is in possession of one notice of claim" responsive to the request; and encloses a copy of that notice of claim, without further describing it.

Here, plaintiffs seek to admit as evidence the Notice of Claim, as well as the statement of the author of the 21 November 2006 letter that it was found among the records of the Office of the Comptroller.

CPLR 4520, designated "certificate or affidavit of a public officer", is one vehicle for putting before the court a record of a fact ascertained, or an act performed, by a public officer in the course of his official duty. Even assuming, however, that the letter response to plaintiffs’ FOIL request may qualify as a "certificate", the Court cannot find in the FOIL or implementing regulations any requirement that the certificate be filed or deposited in a public office of the state. Also problematic, the 21 November 2006 response letter does not appear to reflect a fact ascertained, or an act performed by its author, other than communicating with the person or persons who actually searched the agency's records.

On the other hand, there is a common-law hearsay exception rule for official written statements, which is much broader in scope. Unlike writings admitted pursuant to CPLR 4520, however, which are prima facie evidence of the facts stated, writings admitted pursuant to the common-law exception are merely some evidence which the trier of the facts is free to disbelieve even though the adverse party offers no evidence on the point. One federal court has characterized the foundational requirements for admission under the common-law exception as unexacting.

When a public officer is required or authorized, by statute or nature of the duty of the office, to keep records or to make reports of acts or transactions occurring in the course of the official duty, the records or reports so made by or under the supervision of the public officer are admissible in evidence. The exception is founded upon a public official's lack of motive to distort the truth when recording a fact or event in discharge of public duty.

The report of a search of public records made in response to a FOIL request, mandated by that statute and its, clearly falls within the articulated scope of the common-law exception. Unlike CPLR 4520, there is no stated requirement that the writing be "filed or deposited in a public office, although the absence of a requirement for filing seems to have been important to some judges. Interestingly, CPLR 4521, designated lack of record, and also relevant to FOIL searches, contains no filing or deposit requirement. It provides that a statement signed by an officer having legal custody of specified official records that he has made diligent search of the records and has found no record or entry of a specified nature, is prima facie evidence that the records contain no such record or entry. That provision, too, has common-law origins.

What if the author of the FOIL response apparently did not make the search of the records?

First, there appears to be no "personal knowledge" requirement for applicability of the common-law hearsay exception for official written statements. Like the business records exception, lack of personal knowledge should be considered on the weight, and not the admissibility, of the writing when the other foundation indicia of reliability are present. As to a FOIL response in particular, neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required.

Moreover, where the FOIL response is offered against the party who made it, it should be deemed admissible pursuant to the party admission exception to the hearsay rule. The hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority. A public officer designated by the agency to respond to FOIL requests should be deemed to have been given such speaking authority.

Lastly, with respects to the FOIL response here (except as to the contents of the Notice of Claim), if the official statements exception is not available, the date-stamp "Received City of New York" on the Notice of Claim constitutes a written admission of receipt.

As for the contents of the Notice of Claim served on the City, an out of court statement offered not for the truth of the matter asserted, but merely to show that the defendant was on notice of a danger is not hearsay.

Therefore, plaintiffs have provided sufficient evidence that: on 13 March 2002, the City was served with a Notice of Claim, alleging that, on 1 February 2002, plaintiffs who was in front of 14 Willow Place was caused to trip and fall upon a defective, hazardous, raised, and uneven sidewalk at said location, and that she was caused to sustain serious permanent personal injuries.

The City has offered no evidence to the contrary.

Thus, the foregoing brings the court to the merits of plaintiffs' motion, and their contention that, as a matter of law, the City's receipt of the Notice of Claim is sufficient to satisfy the prior-written-notice condition precedent of the Pothole Law, so as to allow them to pursue their claims against the City arising out of plaintiff’s fall.

Here, a Long Island Personal Injury Lawyer said the question is whether or not there was a previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency.

The Court notes, first, that the structure of the "previous injury" method of notice under the Pothole Law differs from the two other alternative methods in that the subject of the notice is the "previous injury as a result of the existence of the defective, unsafe, dangerous or obstructed condition," rather than the "defective, unsafe, dangerous or obstructed condition" itself.

Generally, a showing sufficient to create a triable issue in opposition to a motion for summary judgment is not necessarily sufficient to establish prima facie one's own entitlement to judgment as a matter of law. One reason is that a court must construe the evidence on a motion for summary judgment in the light most favorable to the party opposing it.

The Notice of Claim preceded the subject accident by more than four years. Other courts have found that period of time, and much less, to be "too remote."

In addition, the Notice of Claim does not designate the precise location of the allegedly defective condition by metes and bounds, and only generally describes the condition as a defective, hazardous, raised, and uneven sidewalk in front of 14 Willow Place. It might fairly be argued, as the City does, that there is no evidence that the accident was caused by the same defective condition.

More importantly, it is not at all clear whether the reference to the same defective condition was intended to reference the nature of the defective condition or its location. If intended to reference the nature of the condition, it seems neither surprising nor inconsistent with other authority. For present purposes, the description of the sidewalk in the Notice of Claim as raised and uneven is certainly more general than, but of the same nature as, the detailed description in plaintiffs’ complaint.

If, however, the reference in to the same defective condition was intended to reference the precise location of the condition, then it would seem out-of-sync with many authorities, both before and after, that do not require such precision. To expect a notice to be as precise as a survey or pinpoint a particular defect when more than one patently exists in the same area is unrealistic and would not further the function of the prior-written-notice provision to give appropriate notice to those charged with the duty to maintain the sidewalk.

Even in cases involving Big Apple Maps, a notice is sufficient if it brought the particular condition at issue to the attention of the authorities.

As a result, a previous notice will be found insufficient where the defect causing plaintiffs’ injury was isolated from the defective condition described on property adjacent to the area in which she fell.

However, a jury issue was presented by a Big Apple Map indicating the presence of an obstruction protruding from the sidewalk at the address immediately adjacent to the address in front of which the plaintiff fell.

Here, the Notice of Claim locates the defective condition on the sidewalk in front of 14 Willow Place, which is the same property at which plaintiff fell. A previous notice that merely referred to the sidewalk in front of a particular house was found insufficient where it did not describe any particular defect.

To note, the Notice of Claim describes a particular defect, the "raised" and "uneven" condition of the sidewalk, even though it does not locate the condition more precisely. Photographs that show the alleged defect, as well as a more expansive area within which the defect is located in front of 14 Willow Place were presented. The Notice of Claim describes the building at 14 Willow Place as "three family premises," and locates the "raised sidewalk flag" that caused plaintiff to fall as "next to" "a large tree situated next to the curb." The photographs depict a portion of a tree-lined residential street that will look familiar to anyone who has spent time in Brownstone Brooklyn. To describe the sidewalk in front of 14 Willow Place, exclusive of the tree and tree bed, as "relatively small" would hardly be unfair. And the condition depicted, at least at the time of plaintiff’s fall, could not be characterized as isolated as a matter of law.

More importantly, plaintiffs failed to describe the relationship between the conditions at the precise location where she fell, specifically described in their Notice of Claim and Verified Complaint, and the condition at the precise location of the fall, which is not further described in her Notice of Claim beyond the address. But the City must have learned the details during the course of the lawsuit, which is not disputed, or from its prior investigation. In considering whether documentary evidence demonstrates that the responsible city agency knew of the hazard and had an opportunity to remedy it, it is fair to assume that the City investigated a condition that allegedly caused serious and permanent personal injuries when alerted to it by the Notice of Claim.

An opportunity to remedy the condition cannot be in dispute here. Indeed, the four years between the Notice of Claim and plaintiff’s fall is the most serious obstacle to a determination in plaintiffs’ favor.

Plaintiffs provided no evidence of any investigation or inspection by the City in response to the Notice of Claim, but that should not be decisive. When the purported prior-written-notice comes from a claim for previous injury, the Court will assume that an inspection at least would be conducted, both in the interest of the City's defense of the claim and its duty to protect pedestrians from unreasonable risk of harm. In the absence of any evidence, however, that would allow even an inference that the condition that caused plaintiff to fall would have existed when the Notice of Claim was served, the four-year gap cannot be ignored; among other places, that evidence might be found in the facts of the claim, not elaborated in the rather bare Notice of Claim, or the legal action that followed, or by expert opinion based upon the facts of plaintiffs’ claim.

Indeed, the City argues that whether the City received prior written notice is generally an issue of fact to be resolved by a jury. However, plaintiffs must establish prima facie that they are entitled to judgment as a matter of law, that is, the Notice of Claim satisfies the condition precedent to their action against the City imposed by the Administrative Code.

Accordingly, plaintiff’s motion is denied.

Negligence of one resulting to injuries to another, more often than not, gives rise to liability. One is liable for the consequences of his actions. If you have encountered injuries by reason of the negligent acts of another, consult with a New York Personal Injury Lawyer immediately. Contact Stephen Bilkis & Associates for a free consultation and seek advice from the best New York Trip and Fall Attorney in our firm.