THE CITY’S PROOF IT DID NOT HAVE PRIOR WRITTEN NOTIFICATION OF THE CONDITION WHICH CAUSED PLAINTIFF TO FALL WAS INSUFFICIENT; THE CITY’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN DENIED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city did not prove it did not have prior written notice of the defective boardwalk board which caused plaintiff to fall. Therefore the city’s motion for summary judgment should have been denied:

“‘Where a locality has enacted a prior notification law and is alleged to be liable for personal injuries sustained as a result of a defective condition, the locality establishes a defense as a matter of law by demonstrating that it did not receive prior written notice of the defective condition'” … . “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 or hazardous conditions which its officials have been actually notified exist at a specified location” … .

Here, the defendants failed to demonstrate, prima facie, that they did not receive prior written notice of the alleged defect. In support of their motion, the defendants submitted, inter alia, the affidavit of the Legal Liaison for the Parks Department, who indicated that she conducted a search of the relevant records related to the subject boardwalk over a period of two years prior to the date of the accident. However, the affidavit did not unequivocally assert that the search failed to reveal any prior written notice of the alleged defect on the boardwalk … . Moreover, the searched records apparently were not attached to the affidavit and, under the circumstances, the defendants otherwise failed to show that all of the relevant records were searched … . Accordingly, the Supreme Court should have denied the defendants’ motion for summary judgment dismissing the complaint regardless of the sufficiency of the plaintiff’s opposition papers … . Young v City of New York, 2026 NY Slip Op 06166, Second Dept 10-21-26

Practice Point: Consult this decision for insight into the proof a municipality must submit to demonstrate a lack of written notice of a dangerous condition which cause a plaintiff’s injury. Here the evidence fell short.