A Phone Call, Even When Reduced to Writing, Does Not Satisfy the City’s “Written Notice of a Defect” Requirement

The Second Department determined the requirement that the city be notified in writing of a defect (here, a raised portion of a sidewalk) before liability for failing to repair will attach was not met.  A phone call from the abutting property owner to the municipality, even if the communication is reduced to writing, is not sufficient. The court further held that the “open request” generated by the abutting property owner’s “311” call did not constitute the city’s “written acknowledgment” of a defective condition (an alternative to the “written notice” requirement):

The City demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting evidence showing that no written notice of any defect was received with regard to the subject sidewalk … . In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, neither [the abutting property owner’s] “311” call nor the records generated by the City’s Department of Parks and Recreation (hereinafter the DPR) from that call provided the City with prior written notice of the sidewalk defect. A verbal or telephonic communication to a municipal body, even if reduced to writing, cannot satisfy the prior written notice requirement … . Nor did the “open request” generated from that “311” call, which was received by the DPR clerk on the computer system, constitute a “written acknowledgment” by the City of a defective condition … . Tortorici v City of New York, 2015 NY Slip Op 06721, 2nd Dept 9-2-15