IN A SIDEWALK SLIP AND FALL CASE, COMMUNICATION WITH THE CITY BY PHONE DOES NOT SATISFY THE WRITTEN NOTICE REQUIREMENT, EVEN IF THE COMMUNICATION WAS REDUCED TO WRITING; PLAINTIFF DID NOT DEMONSTRATE AN EXCEPTION TO THE WRITTEN NOTICE REQUIREMENT APPLIED (FIRST DEPT).

The First Department, reversing Supreme Court in this sidewalk slip and fall case, determined the “written notice” requirement for municipal liability was not met and plaintiff did not demonstrate an exception to the written notice requirement was applicable:

While walking down a sidewalk on West 26th Street in Manhattan, plaintiff tried to navigate around other pedestrians and tripped and fell on a metal fence surrounding a tree well, known as a tree guard, where there was no longer a tree. Plaintiff seeks to hold the City of New York and New York City Parks Department and Recreation liable for his fall on the theory that defendants created a hazard by leaving the tree guard after they removed the tree. Defendants’ motion for summary judgment should have been granted.

The City sustained its initial burden of demonstrating that it did not receive prior written notice of the condition that caused plaintiff’s accident. A search of Department of Transportation and Department of Parks and Recreation records revealed only two 311 calls for the accident site. The calls resulted in service reports reflecting removal of dead trees and a direction for a City employee to investigate whether replacement of the trees was appropriate. No party disputes that the trees were not replaced before the accident. However, verbal or telephonic communication to a municipal body that is reduced to writing does not satisfy the prior written notice requirement, even if the writing includes a service report, as it does here … … .

As a result, the burden shifted to plaintiff to demonstrate that one of the exceptions to the prior written notice requirement applied … . Plaintiff failed to raise a triable issue of fact concerning whether the City affirmatively created the defective condition through an act of negligence or that a special use resulted in a special benefit to it … . Plaintiff’s theory was that his accident was the result of a combination of inadequate lighting, the height and color of the tree well guard, and the removal of the tree without replacement. However, his expert failed to cite relevant industry-wide standards and practices regarding the construction or design of a tree well border from which the City may have deviated. Moreover, plaintiff did not show that the City’s failure to replace the trees was an affirmative act of negligence, rather than a negligent omission, that created an immediately apparent dangerous condition … . Carney v City of New York, 2024 NY Slip Op 05884, First Dept 11-26-24

Practice Point: Re: municipal liability for a sidewalk slip and fall, phone communications about the defect do not satisfy the written notice requirement even if the communications are reduced to writing.