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“Big Apple” Map Provided City with Written Notice of a Tree-Well Defect in a Sidewalk/Notice of Claim Was Sufficient Even Though It Did Not Specifically Mention the Tree-Well Defect

The Second Department determined summary judgment should not have been granted to the city in a tree well/sidewalk slip and fall case.  The “Big Apple map” provided the city with notice of the defect alleged to be the cause of plaintiff's fall.  The notice of claim was sufficient to notify the city of the defect in question, even though the tree well was not specifically mentioned in the notice:

“Administrative Code of the City of New York § 7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects . . . [of] which its officials have been actually notified exist at a specified location” … . Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City … .  * * *

Here, the Big Apple map provided the City with notice that the subject tree well was unprotected and potentially hazardous. Indeed, the key to the Big Apple map, which has been in the City's possession since 2003, is entitled, in relevant part, “Survey Of Pavement Defects Sufficient To Cause A Hazard.” Moreover, it is the failure to “fence” or place a barrier around the tree well, which is shown on the Big Apple map, that formed the basis of the plaintiff's cause of action. Therefore, the City did not meet its burden of demonstrating, prima facie, that it did not have prior written notice of the alleged defective condition … .

Moreover, the Supreme Court erred in concluding that the plaintiff's notice of claim precluded her from asserting a theory of liability based on the absence of a fence or barrier around the tree well. The purpose of the notice of claim is “[t]o enable authorities to investigate, collect evidence and evaluate the merit of a claim” … . Here, the plaintiff's notice of claim alleged a defective condition located adjacent to P.S. 146 on 98th Street, between 158th and 159th Avenues, in Queens. The City does not argue that its investigation of the claim was prejudiced based on the description provided by the plaintiff in the notice of claim … . Nor has it articulated how investigating a defective sidewalk would differ from investigating an unsecured tree well at the same location. Moreover, any discrepancy as to the cause of the plaintiff's fall was remedied by the plaintiff's hearing testimony. Bartels v City of New York, 2015 NY Slip Op 00836, 2nd Dept 2-4-15


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