Fisch v. City of N.Y.

194 A.D.3d 786

149 N.Y.S.3d 137

Chayie FISCH, appellant,

v.CITY OF NEW YORK, respondent, et al., defendant.

2019-05501

Index No. 2316/14

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 18, 2021

May 12, 2021

Aron S. Wolf (Ephrem J. Wertenteil, New York, NY, of counsel), for appellant.

James E. Johnson, Corporation Counsel, New York, N.Y. (Scott Shorr and Elina Druker of counsel), for respondent.

WILLIAM F. MASTRO, A.P.J., ROBERT J. MILLER, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated April 12, 2019. The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment determining that the defendant City of New York had prior written notice of the allegedly defective condition of the sidewalk or, in the alternative, for sanctions against the defendant City of New York for spoliation of evidence.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action against the defendant City of New York and another defendant to recover damages for personal injuries. The complaint alleged that on January 4, 2013, the plaintiff was walking on a sidewalk when she fell after stepping into a tree well with a soil level that was approximately two inches lower than the surrounding sidewalk. The complaint alleged that the City was negligent in "taking out and/or replacing the tree and digging out the aforementioned tree well" and "in failing to restore the tree well ... to its original status, level/flush with the adjacent sidewalk." The complaint further alleged that the City was negligent in permitting the area to "become and/or remain in a depressed and uneven condition." In addition, the complaint alleged that the City was negligent "in failing to warn pedestrians of the aforesaid dangerous conditions [and] in failing to erect barricades, guards and other safety devices and/or place warning signs in the area surrounding said condition."

After issue was joined, the plaintiff moved, inter alia, for summary judgment determining that the City had prior written notice of the allegedly defective condition of the sidewalk or, in the alternative, for sanctions against the City for spoliation of evidence. The Supreme Court denied those branches of the plaintiff's motion, and the plaintiff appeals.

Administrative Code of the City of New York § 7–201(c)(2) "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" ( Katz v. City of New York, 87 N.Y.2d 241, 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374 ; see De Zapata v. City of New York, 172 A.D.3d 1306, 1307, 101 N.Y.S.3d 151 ). Accordingly, "prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City" ( Katz v. City of New York, 87 N.Y.2d at 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374 ; see De Zapata v. City of New York, 172 A.D.3d at 1307, 101 N.Y.S.3d 151 ). "[A] notice is sufficient if it brought the particular condition at issue to the attention of the authorities" ( Weinreb v. City of New York, 193 A.D.2d 596, 598, 597 N.Y.S.2d 432 [internal quotation marks omitted]; see Harrison v. City of New York, 184 A.D.3d 742, 743, 126 N.Y.S.3d 476 ; Holt v. County of Tioga, 95 A.D.2d 934, 935, 464 N.Y.S.2d 278 ).

Big Apple Pothole and Sidewalk Protection Corporation (hereinafter Big Apple) "is a corporation established by the New York State Trial Lawyers Association for the purpose of giving notices in compliance with [Administrative Code § 7–201(c)(2)]" ( D'Onofrio v. City of New York, 11 N.Y.3d 581, 584, 873 N.Y.S.2d 251, 901 N.E.2d 744 ). "It does so through maps on which coded symbols are entered to represent defects" ( id. at 584, 873 N.Y.S.2d 251, 901 N.E.2d 744 ). "A Big Apple map submitted to the Department of Transportation may serve as prior written notice of a defective condition" ( Rodriguez v. City of New York, 152 A.D.3d 810, 810, 59 N.Y.S.3d 429 [internal quotation marks omitted]; see Walker v. Jenkins, 137 A.D.3d 1014, 1015, 27 N.Y.S.3d 242 ).

Here, in support of her motion, the plaintiff submitted a Big Apple map, dating from 2003, which included a "v" symbol in the area where she fell. The key to the map indicated that a "v" symbol denoted: "Tree wells without a ‘fence’ or in place barrier." The plaintiff also submitted other evidence demonstrating that a tree that had been located in the subject tree well had fallen, and the bulk of the tree was removed sometime in 2011. A stump approximately 15 inches in diameter and 8 inches high remained in the subject tree well. The plaintiff's submissions showed that the stump was still present on the date of the subject accident.

Although the Big Apple map submitted by the plaintiff may have apprised the City of the fact that the subject tree well did not have a fence or barrier around it in 2003, "[t]he awareness of one defect in the area is insufficient to constitute notice of a different particular defect which caused the accident" ( Roldan v. City of New York, 36...