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THE CITY ISSUED TREE PIT PERMITS FOR THE SIDEWALK ABOVE A SUBWAY STATION; PLAINTIFF WAS INJURED IN THE SUBWAY STATION BELOW THE SIDEWALK WHEN A PIECE OF CONCRETE FELL; THE CITY DID NOT CLAIM IT DID NOT HAVE WRITTEN NOTICE OF THE SIDEWALK DEFECT; THERE WAS A QUESTION OF FACT WHETHER THE CITY CREATED THE DANGEROUS CONDITION (TREE PIT PERMITS) (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Maltese, determined there was a question of fact whether the city created the dangerous condition on a sidewalk which resulted in a piece of concrete falling on plaintiff in the subway station below. Although the city can escape liability if it did not have written notice of the sidewalk defect, the city did not claim a lack of notice. Because the city issued permits for tree pits above the subway, there was a question of fact whether the city created the dangerous condition (as opposed to having written notice of it):

Generally, assuming that the alleged dangerous condition falls within the scope of Administrative Code § 7-201(c)(2), under the framework set forth in Smith v City of New York [210 AD3d 53] , the City would have the initial burden to show that it lacked prior written notice. Here, however, the City does not argue on appeal that it lacked prior written notice of the alleged defect. Therefore, we do not address this issue. Because the burden did not shift to the plaintiff to demonstrate the applicability of an exception to the prior written notice defense … , we consider instead whether the City made a prima facie showing that, contrary to the allegations in the complaint, it did not cause or create the alleged dangerous condition.

Here, the City failed to make a prima facie showing of its entitlement to judgment as a matter of law dismissing the complaint and all cross-claims insofar as asserted against it … . As the Supreme Court noted, the City annexed to its motion papers street opening permits for “tree pits” along Metropolitan Avenue between Union Avenue and Lorimer Street … . Neither in its initial moving papers nor in its reply papers … did the City submit evidence that the construction company’s preparation of tree pits above the subway station did not cause or create the defective condition which allegedly caused the injured plaintiff’s accident. Morejon v New York City Tr. Auth., 2023 NY Slip Op 03007, Second Dept 6-7-23

Practice Permit. Here the city did not claim it didn’t have written notice of a sidewalk defect which allegedly caused a piece of concrete to fall on plaintiff in the subway station below. Because the city issued tree pit permits for the sidewalk, there was a question of fact whether the city created the dangerous condition.

 

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PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY IN THIS INTERSECTION... THERE WAS A QUESTION WHETHER THE EXPANSION OF A PREEXISTING NONCONFORMING USE...