"Rules" Unique to Municipalities

Vito A. Cannavo, Esq.

Sullivan Papain Block McGrath & Cannavo P.C.

             I am supposed to speak to you tonight about the “rules” of practice which areunique to municipal claims. I guess that, from a CLE standpoint, it sounds better to outline atopic that way, instead of telling you I really will be speaking about sandbags, traps andriddles. A “rule” suggests some standard, predictable way of doing things. Looking at the“rules” in City cases, there are numerous exceptions in some areas, and in other areas, fewguidelines. Add to the mix factual hair-splitting and public policy” considerations, and youhave crated a nightmare of a practice area for the unwary practitioner. The proceduralpitfalls are a challenge for even those most familiar with the hurdles they pose. And, thejudicial interpretations of those “rules” sometimes appear as predictable a guide as nextweek’s lottery picks in the Daily News .

I also learned long ago never to underestimate any adversary. The dedicated staffs ofthe local corporation counsel do nothing but handle these claims. They develop an expertisein the nuances of City practice that results in many a failed attempt by an earnest plaintiffeager to assault the City’s coffers. Be prepared for a worthy adversary in these matters, anddon’t assume that understaffed and underpaid public law offices are an easy target.

Finally, don’t overlook the public relations campaign being mounted against theseclaims. Do you wonder why elected officials routinely seize the bully pulpit to tell thepublic that the claims are bankrupting the City and taking money away from their kids’education? Or, did you ever wonder why certain public agencies mount “anti-fraud”campaigns inviting the good (i.e., non-litigious) citizens of the City to report fraudulentlawsuits? Because while “tort reform” may not pass in the Legislature, the people who hearand see these messages are your jurors !

So, welcome to the world of municipal liability. Just remember to keep the Pepto-Bismol close by and your legal malpractice insurer on speed dial.

I.           The Procedural Requirements for Making a Claim

             Unlike most other legal actions, a lawsuit against a municipality involvespreliminary legal requirements, which can be fatal if not properly addressed. Whenpresented with a claim involving an obvious governmental agency, the practitioner shouldautomatically consider that special requirements will apply. There are obvious governmentagencies where this will occur, such as: the City of New York and the New York CityTransit Authority. But, there are numerous separate entities that, although seemingly linkedto the “City”, will impose these special requirements as well:

             -           Metropolitan Transportation Authority

             -            Manhattan and Bronx Surface Operating

                         Authority (“MABSTOA”)

             -            Staten Island Rapid Transit Operating

                         Authority (“SIRTOA”)

             -            Metro North Railroad

             -            LIRR

             -            Port Authority of New York and New Jersey

             -            Triborough Bridge and Tunnel Authority

             -            New York City Housing Authority

             -            New York City Health & Hospitals Corporation

There are also some not so obvious, where a Notice of Claim requirement exists:

             -            Battery Park City Authority

             -            Jacob Javits Convention Center

                         (New York Convention Center Development

                         Corporation)

             -            Westchester Medical Center

                         (“Westchester Health Care Corporation”)

There are dozens of similar governmental or quasi-governmental agencies that require aNotice of Claim. When in doubt, find out! You have 90 days to file your claim and it iscritical that you investigate the entity immediately. A good place to start is the PublicAuthorities Law which lists many of these entities. The Green Book published by the Cityof New York is the “Official Directory of the City of New York” and contains a completelisting of municipal agencies and their staffs.

             a.           The Notice of Claim

             Before proceeding with a claim against a municipality, a legal document known asthe "Notice of Claim" must be presented. The Notice of Claim is, in fact, a conditionprecedent to the presentation of any claim. With regard to a claim against a municipalitysuch as the City of New York, the provisions of Section 50-e of the General Municipal Law(GML) control. That section generally states that as a condition precedent to commencing alawsuit against the municipality, the plaintiff must file a Notice of Claim within 90 days. §50(e)(1)(a). For wrongful death actions, the ninety days starts from the appointment of theadministrator. §50(e)(1)(a). But, don’t be fooled – your conscious pain and suffering claimis distinct from wrongful death and you cannot wait for the appointment to preserve thatclaim, since some Surrogate’s Courts are slow in processing your application and the Statuteof Limitations is only one year and 90 days for the pain and suffering claim. If it looks likeyou will be delayed, file the Notice of Claim on behalf of the proposed representative. Youcan always amend later when the appointment is completed. See, Yoo v. New York City HHC, 239 A.D.2d 267, 657 N.Y.S.2d 189 (1 ^st Dep’t 1997). The day of the occurrence isexcluded from the calculation. General Construction Law Section 20. Take a look at theattached computation sheet in conjunction with this. If the last day falls on a Saturday,Sunday or public holiday, the first business day becomes the last day. General ConstructionLaw Section 25a. Okay, now read these sections and see if you really want to wait until thelast day! The failure to comply with this condition precedent is the basis for dismissal of theclaim. Davidson v. Bronx Municipal Hospital , 101 A.D.2d 1034, 475 N.Y.S.2d 792 (1stDep't 1982) aff'd , 64 N.Y.2D 59, 484 N.Y.S.2d 533 (1984). See also Searle v. City of NewRochelle , 293 A.D.2d 736, 742 N.Y.S.2d 314 (2d Dep't 2002) (claim dismissed where moldwas present in 1995, but claim not filed until 1998 – claim accrues when injury is apparent,not when cause of injury is known). The municipality need not raise the untimeliness of theclaim as an affirmative defense to defeat a late claim. See , Taverna v. City of New York , 166A.D.2d 314, 560 N.Y.S.2d 775 (1st Dep't 1990).

             The purpose behind the Notice of Claim requirement ostensibly is to allow themunicipality to investigate the claim while the information is still available and beforewitnesses depart or conditions change. See, Beary v. City of Rye , 44 N.Y.2d 398, 406N.Y.S.2d 9 (1978). With regard to claims involving the New York City Transit Authority orthe Manhattan and Bronx Surface Transit Operating Authority, the provisions for the Noticeof Claim are set forth in the Public Authorities Law, Section 1212. Take a look also atPublic Authorities Law Section 1276 for the MTA and its subsidiary corporations (LIRR,Metro North Railroad).

             So, what is the municipality entitled to receive to “investigate” the claim? Section50(e)(2) requires: (a) a notice in writing, which is (b) sworn to by or on behalf of theclaimant. See Butler v. Town of Smithtown , 293 A.D.2d 696, 742 N.Y.S.2d 324 (2d Dep't2002) (improper verification not fatal to claim). The Notice shall contain:

1           The name and address of each claimant. (Don’t forget the spouse on thederivative claim or the parent in the infant’s claim);

2           The name and address of counsel;

3           The nature of the claim (is it a trip and fall; a police action; medicalmalpractice; roadway defect). This is important to avoid the claims of lack of“specificity”. The courts need to see the “buzz words”. So, be cautious in the use ofterms. For example, don’t say the patient slipped and fell if you are referring to atrip over a broken sidewalk;

4           The time when the event occurred (“approximately”);

5           The place where the event occurred;

6           The manner or way that the event occurred;

7           The items of damage or injuries claimed. Note that for municipalities under one million in population you are not supposed to state an amount. They aresupposed to request a supplemental claim for damages. CPLR §3017(c) goes evenfurther since it applies to all municipalities regardless of population size. Again,it tells us not to state a dollar amount.

             What if you forget something? You may always serve an amended Notice at anytime and at any stage of an action if there is a mistake, omission, irregularity or defect madein good faith, and if there is no prejudice to the municipality. This specifically does notinclude mistakes, omissions or defects regarding the manner of service or the time ofservice .

             Keep in mind an important decision by the Court of Appeals in Brown v. City of NewYork , 95 N.Y.2d 389, 718 N.Y.S.2d 4 (2000). There, the plaintiff had filed a notice of claimregarding a trip and fall on a New York City sidewalk. The Notice of Claim, however,referred to the fact that he tripped on a defective portion of sidewalk and curb . He submitteddetailed measurements of the location in the Notice of Claim. He also attached photographsof the scene, which circled the area around the curb , which included a small portion ofsidewalk as well. He also testified at a Section 50(h) hearing that he tripped on a defective sidewalk . The jury found specifically that plaintiff had fallen on the sidewalk. The evidenceshowed prior notice of the sidewalk but not the curb . Motion to set aside the verdict granted by the trial court on the ground that the Notice of Claim was defective since it referred toboth sidewalk and curb ! The Appellate Division, Second Department, affirmed thedismissal and agreed that the Notice of Claim was deficient.

             The Court of Appeals, in a nice review of the law applicable to Notice of Claimrequirements, reversed the Appellate Division. It noted that Section 50(e) does not require“ literal nicety or exactness ”, but rather sufficient information to investigate. Given that thenotice here gave the location, included photographs and referred to a defective sidewalk fourtimes, the Notice was sufficient to allow the City to investigate the claim.

             The lesson to be learned from Brown is clear: Be careful about the language used todescribe the location and manner in which the accident happened. Don’t hedge your bets –by referring to sidewalk and curb or by circling a photograph without a reference point. Youwill have plenty of time at later proceedings to have your client mark a photograph in thecontext of recorded testimony to avoid any mistake on the specifics of that occurrence.

             See , Shpack v. New York City Transit Authority , 292 A.D.2d 590, 740 N.Y.S.2d 92(2d Dep’t 2002), where plaintiff’s complaint was dismissed because the Notice of Claim didnot list a specific location; the testimony at the Section 50-h did not clarify the location; anda supplemental bill of particulars gave a completely different location than generallydescribed in the Notice of Claim, Complaint and Bill of Particulars.

             b.          The Late Notice of Claim

In the unfortunate circumstance when a Notice of Claim cannot be filed within thestatutory period of 90 days, application can be made to the Court for leave to file a lateNotice of Claim. Section 50(e)(5). The basis for the motion will depend on the factualcircumstances which would justify excusing the late filing. While the decisions are factintensive, some general -- although often conflicting -- patterns have emerged to add life to aclaim outside the 90-day window.

             The case law is legion in this area and research should be conducted to find therelevant cases which would allow the filing of a late claim. The various factors usuallyconsidered in combination, are set forth in GML Section 50-e(5). Significant among thefactors is the lack of substantial prejudice to the municipality. See, GML §50-e(5). Otherfactors include:

             (a)         infancy;

             (b)         mental or physical incapacity

                         (you will need convincing medical proof

                         if you rely on this. See, e.g., Savelli v.

                         City of New York , 104 A.D.2d 943, 480 N.Y.S.2d

                         561 (2d Dep’t 1989) [quadriplegic]);

             (c)         death;

d)          reasonable reliance on settlement

                         representations of the public corporation

                         or its insurer;

(e)         excusable error regarding the name of the public

          corporation.

                         A nice, concise discussion of the elements for a late Notice of Claim can befound in Conroy v. State of New Y ork , 192 Misc.2d 71, 744 N.Y.S.2d 811 (Ct. Cl. 2002).

Section 50(e)(5) even allows the motion to be made after the action was commenced. Absent one of these reasons (and many times with one) the Courts can be very strict inapplying the rule. See Riordan v. East Rochester Schools , 291 A.D.2d 922, 737 N.Y.S.2d702 (4 Dep't 2002) (motion denied where Notice of Claim filed on day 96 – 6 days beyondthe statutory deadline – where plaintiff had no basis for the delay).

             Care should be taken, however, to remember that the statute of limitations onpersonal injury matters against a municipality for an adult is one year and 90 days and forwrongful death two years. The claim for conscious pain and suffering in a death action,however, must be commenced within one year and ninety days. See, GML §50-i.

A child enjoys the tolling provisions of CPLR Section 208. See , Henry v. City ofNew York , 94 N.Y.2d 275, 702 N.Y.S.2d 580 (1999); Cohen v. Pearl River Union FreeSchool District , 51 N.Y.2d 256, 434 N.Y.S.2d 138 (1980).

But, take a look at what happened to the kid in Plummer v. New York City Healthand Hospitals Corporation , 98 N.Y.2d 263, 746 N.Y.S.2d 647 (2002). The infant plaintiffwas born in 1985 at the North Central Bronx Hospital, which was owned and operated bythe New York City Health and Hospitals Corporation. He was born with severe braindamage and Erb’s Palsy. Thereafter, he was treated at various clinics, including NorthCentral’s pediatric clinic for his Erb’s Palsy and for routine health care. The medical recordsindicated that the infant continued with routine medical treatment at the North Central clinicinto the year 1990.

On October 18, 1990, a Notice of Claim was filed on behalf of the infant and hismother, claiming negligence and medical malpractice. A Complaint was served onNovember 13, 1991, claiming more specifically medical malpractice. Approximately eightyears later , in August 1999, the defendant, HHC, moved for summary judgment on theground that the plaintiff failed to serve a Notice of Claim within 90 days of the malpractice -- which, for all intents and purposes, was the May 21, 1985 birth date of the infant. Plaintiffs argued in opposition that, since there was continuous treatment at North Centralfor the injuries sustained during the delivery, namely the Erb’s Palsy, the Notice was timely.

The Supreme Court denied the motion to dismiss, holding that HHC was estoppedfrom raising the untimeliness of the Notice of Claim, because it waited until the ten-yearstatute of limitations had expired before it brought its motion. The Appellate Divisionaffirmed on different grounds, holding that the limitations period was extended under thecontinuous treatment doctrine, since plaintiff was receiving treatment at the hospital forsome of his birth injuries prior to the filing of the Notice of Claim.

The Court of Appeals reversed and held that the filing of the Notice of Claim, morethan five years after the infant’s birth, was untimely. The Court held that the action had tobe brought within 90 days after the claim arose, which, in a malpractice case, would be onthe date of the alleged wrongful act. While noting that the continuous treatment doctrinewould toll the 90 day period for filing the Notice of Claim, the continuous treatment had tobe for the same illness, injury or condition which arose from the original negligent act. Itspecifically noted that routine examinations or visits for unrelated matters do not fall withinthe ambit of continuous treatment. The Court also noted that since the plaintiff failed tokeep some of the appointments for the Erb’s Palsy, and also had indicated a desire to move..., those factors effectively broke any chain of continuity and created a gap of 16months between routine visits. Thus, without a record to indicate regular treatment, theCourt held that there was no continuous treatment. The Court, therefore, held that theComplaint should have been dismissed, since the Notice of Claim was untimely.

This case raises the question as to whether the entire issue would have been avoidedif a motion had been made to permit a late Notice of Claim to be filed in October 1990,rather than simply filing the Notice of Claim. Certainly, the infant could not have taken anyaction on its behalf, and was relying upon a parent, and more importantly, counsel, to file theclaim in a timely manner. The late Notice of Claim would have been made within the ten-year statute of limitations for infancy, and the questions regarding continuous treatmentwould have been less important. A harsh result for a child that probably could have beenavoided. Notably, the Notice of Claim was also filed for the mother’s derivative cause ofaction, even though the statute of limitations on that claim expired one year and 90 daysafter the infant’s birth.

See also , Harris v. City of New York , 297 A.D.2d 473, 747 N.Y.S.2d 4 (1 ^st Dep’t2002) (motion made four weeks beyond the 90-day period denied even though infantplaintiff could not file on its own; a harsh result according to the dissent).

If the statute of limitations has expired before the motion for the late Notice of Claimis presented the action would be time barred in any event and you can’t make the motion . See , §50-e(5) Pierson v. City of New York , 56 N.Y.2d 950, 453 N.Y.S.2d 615 (1982); Santiago v. City of New York , ___ A.D.2d ___, 742 N.Y.S.2d 566 (2d Dep’t 2002). Seealso , Cruz v. City of New York , 302 A.D.2d 553, 755 N.Y.S.2d 416 (2d Dep’t 2003) (claimtimely filed for injured husband. However, because claim for wife not timely filed onderivative claim, motion for late Notice was made for her. While that motion was pending,statute of limitations expires. Since husband did not file Complaint, his lawsuit untimely,since toll for filing late Notice of Claim on wife’s derivative claim did not apply tohusband’s claim.)

                         i.           Actual Notice

                         Actual notice to the defendant of the facts surrounding the accident is aprimary example of the justification for a late Notice of Claim. The moving party must,however, show that the municipality had actual knowledge of the facts through itsemployees. See, Brown v. County of Westchester , 293 A.D.2d 748, 741 N.Y.S.2d 281 (2dDep’t 1001) (leave to serve Notice eight years after abuse of child denied, where socialservices records and medical records did not alert authorities of the abuse; Rabanar v. Cityof New York , 290 A.D.2d 428, 736 N.Y.S.2d 93 (2d Dep’t 2002) (leave to serve late notice 14 months after occurrence where claim was for defective lighting was denied since policereport, upon which claimant relied, did not indicate any defect in the lighting as a factor inthe accident); Lozada v. City of New York , 189 A.D.2d 726, 592 N.Y.S.2d 742 (1st Dep't1993) (late filing allowed 8½ months after the 90 day limitations against the HousingAuthority where a housing police officer had filed an accident report giving the authoritynotice of the accident); Mestel v. Board of Education of the City of Yonkers , 90 A.D.2d 809,455 N.Y.S.2d 667 (2d Dep't 1982) (late notice of claim was excused where employees of theCity were at the scene and assisted the plaintiff at the time of the accident); but see, Mrak v.City of New York , 192 A.D.2d 608, 595 N.Y.S.2d 831 (2d Dep't 1993) (leave to file latenotice denied where no evidence that the City had actual knowledge of the incident; inabilityto speak English, not a basis for late claim). P.S. Ignorance of the law is no excuse! See Perez v. State of New York , 293 A.D.2d 918, 742 N.Y.S.2d 190 (3d Dep’t 2002). Ealey v.City of New York , 204 A.D.2d 720, 612 N.Y.S.2d 445 (2d Dep't 1994) (late Notice of Claimdenied where plaintiffs delayed 13 months because they were unaware of the Notice ofClaim requirement).

                         ii.          Disabling Injuries .

                         If the plaintiff can show disabling injuries which prevented him from seekingcounsel to allow assistance in filing the claim, a late Notice of Claim may be appropriate. See, Strauss v. New York City Transit Authority , 195 A.D.2d 322, 600 N.Y.S.2d 32 (1stDep't 1993), but see, Munnerlyn v. City of New York , 203 A.D.2d 437, 610 N.Y.S.2d 322 (2dDep't 1994) (allegation of "shock" not sufficient basis). See also Burgos v. City of NewYork , ___ A.D.2d ___, 742 N.Y.S.2d 39 (1 ^st Dep’t 2002) (complaint dismissed whereplaintiff offered “insanity” as reason for failing to file Notice of Claim for one year).

                           iii.         Transitory Conditions .

                         In some instances leave may be granted where the condition alleged to havecaused the injuries was transitory in nature and where there was no prejudice to themunicipality. See, Strauss v. New York City Transit Authority , supra , (no prejudice wherethe condition was snow and ice which would have prevented an investigation even if atimely claim was filed); Hoffman v. New York City Housing Authority , 187 A.D.2d 334, 589N.Y.S.2d 475 (1st Dep't 1992) (insufficiency of Notice of Claim for transitory condition ofsnow and ice not grounds for a dismissal five years after claim was presented); Rosenblatt v.City of New York , 160 A.D.2d 927, 554 N.Y.S.2d 800 (2d Dep’t 1990) (same) Cruz v. Cityof New York , 95 A.D.2d 790, 463 N.Y.S.2d 851 (2d Dep’t 1983).

             c.           Specificity of Location

             When describing the location or condition which caused the occurrence, care mustbe taken to be as specific as possible. The case law, however, is inconsistent in this area andfact intensive. The wiser practice is to draft the claim properly and avoid these pitfalls andprevent a major headache at a later point. See the discussion on Brown , supra . See also , Rivera v. City of New York, ___ A.D.2d ___, 757 N.Y.S.2d 273 (1 ^st Dep’t 2003) (Notice ofClaim deficient where it referred to accident location by measurements of streets whichwould not intersect, thereby creating confusion which could have been corrected at 50-hhearing, or upon service of complaint and bill of particulars -- but wasn’t); Shpack v. NewYork City Transit Authority , 292 A.D.2d 590, 740 N.Y.S.2d 92 (2d Dep’t 2002) (complaintdismissed where notice simply mentioned that accident occurred “on West 6 ^th Street andShell Road”, where 50h never specified location, and where Bill of Particulars named anentirely different street); Butler v. Smithtown , 293 A.D.2d 696, 742 N.Y.S.2d 324 (2d Dep’t2002) (notice of claim not defective where area was repaired making a more detaileddescription of location impossible), Romuleus v. City of New York , 200 A.D.2d 387, 608N.Y.S.2d 77 (1st Dep't 1994) (papers lacking in specificity inadequate and requireddismissal); Ortiz v. New York City Housing Authority , 201 A.D.2d 547, 607 N.Y.S.2d 701(2d Dep't 1994) (where Notice of Claim failed to state location, claim was patently defectiveand prejudiced the defendant); but see , D'Allesandro v. New York City Transit Authority , 83N.Y.2d 891, 613 N.Y.S.2d 849 (1994) (court should look beyond the four corners of theNotice of Claim to all of the surrounding circumstances which would allow the municipaldefendant to investigate the claim, including the testimony at the statutory hearing).

             d.          Amending the Notice of Claim

             Section 50(e)(6) allows you to amend the Notice of Claim “ at any time after theservice of Notice of Claim and at any stage of an action”. The amendment is appropriate ifyou are attempting to correct “a mistake, omission, irregularity or defect”. However, theerror must have been made “in good faith”, and, of course, there has to be a showing of “ noprejudice ”. See , Barrios v. City of New York , 300 A.D.2d 480, 751 N.Y.S.2d 562 (2d Dep’t2002) (no prejudice by erroneous description, since evidence adduced at Section 50-hhearing and photographs attached to the Notice of Claim sufficiently apprised City ofaccurate location); Siegel v. City of New York , 292 A.D.2d 369, 738 N.Y.S.2d 80 (2d Dep’t2002) (leave to amend Notice of Claim, complaint and bill of particulars to correct accidentsite two years after accident denied because errors prejudiced City’s ability to “investigate”); White v. New York City Housing Authority , 288 A.D.2d 150, 734 N.Y.S.2d 11 (1 ^st Dep’t2001) (amendment not allowed where claim of poor lighting not mentioned in notice ofclaim, but first raised in bill of particulars); Stohmal v. New York City Housing Authority ,289 A.D.2d 65, 734 N.Y.S.2d 41 (1 ^st Dep’t 2001) (amendment proper to indicate claim ofslippery paint where original notice stated that stairs were “worn, dirty, slippery”); Palmieriv. New York City Transit Authority , 288 A.D.2d 361, 733 N.Y.S.2d 127 (2d Dep’t 2001)(Notice of claim contained incorrect bus number; amendment was proper four years laterwhen plaintiff discovered error; fact that defendant waited until time of trial underminedclaim of prejudice).

e. A Picture Is Worth a Thousand Words: A Document Doesn’t Hurt Either

             The old expression "a picture is worth a thousand words" may also assist thepractitioner in avoiding a challenge to the specificity of the Notice of Claim. Thephotograph may be copied and attached to the Notice of Claim showing the condition andlocation where the accident occurred. While not required, it would invariably assist thecourt in finding a lack of prejudice to the defendant. For example, in O'Keefe v. City of NewYork , 181 A.D.2d 562, 582 N.Y.S.2d 88 (1st Dep't 1992), the Court held that inadequacy ofthe notice was not fatal where the City could have determined the correct location at the 50-h hearing and by viewing the photographs attached to the Notice of Claim. See also , Barriosv. City of New York , supra .

             As the discussion in Brown , supra , shows, attaching photographs to support theclaim was helpful to the Court of Appeals, and it prevented the dismissal of the complaint. Just as a photograph will prove very helpful in defeating claims of lack of specificity,available documentary proof doesn’t hurt either. A copy of the police report, incident report,discharge summary or similar documentary evidence outlining the claim to allow an“investigation” are all helpful – especially if you expect to use them at the time of trial.

             f.           Service of the Notice of Claim

             When dealing with the different municipalities throughout the state, care should betaken to serve the Notice of Claim on the appropriate agency responsible for processing it. Within the City of New York, a Notice of Claim should be served on the CorporationCounsel’s office at 100 Church Street, New York, New York, and upon the Comptroller'sOffice, at One Centre Street, New York, New York. Claims against the New York CityTransit Authority should be served at the headquarters at 130 Livingston Street, Brooklyn,New York, and upon its counsel at the same location. The New York City Health andHospitals Corporation, which is a separate legal entity, must be separately served at itsheadquarters at 125 Worth Street, New York, New York. Similarly, the New York CityHousing Authority should be separately served at its headquarters at 250 Broadway, NewYork, New York. While service by registered mail is permitted under Section 50-e(3)(b),personal service is the better choice. And always get a stamped copy for your files.

             And, make sure you don’t take any shortcuts as illustrated in Viruet v. City of NewYork , 97 N.Y.2d 171, 738 N.Y.S.2d 2 (2001). In Viruet the Court of Appeals held that aplaintiff can properly provide notice of intention to bring a personal injury action against theNew York City Health and Hospital Corporation, even though service of the Notice ofClaim was made on the Office of the Corporation Counsel instead of the Health andHospital Corporation (“HHC”). HHC had moved to dismiss the plaintiff’s clam on theground that the Notice of Claim had not been served on an officer or director of HHC,pursuant to Unconsolidated Laws Section 7401(2). Plaintiff had contended that the servicewas appropriate, since General Municipal Law Section 50(e)(3)(a) states that service of aNotice of Claim may be made “by delivering a copy thereat personally or by registered orcertified mail to the person designated by law as one to whom a summons in an action in theSupreme Court issued against its corporation may be delivered, or to an attorney regularlyengaged in representing such public corporation ”. Section 7401(2) specifically related toHHC, however, and stated that a Notice of Claim “shall have been filed with the director oroffice of the corporation within 90 days after such cause of action shall have accrued”. HHCthus argued that Section 7401(2) had priority over Section 50(e), and that the provisions ofSection 7401(2) were exclusive. The Supreme Court denied the motion to dismiss,concluding that Sections 50(e)(3)(a) and 7401(2) were not exclusive, but rather consistent interms of the procedures to serve the Health and Hospitals Corporation. It held that there wasno conflict. Rather, it held that the provisions of Section 7401(2) required service on anofficer or director of HHC, while Section 50(e)(3)(a) provided the manner in which thatservice made be done. The Appellate Division affirmed, holding that Section 50(e)(3)(a)had priority over the special provisions of Section 7401(2). The Court of Appeals agreedand held: “we conclude that the Notice of Claim service provisions of General MunicipalLaw Section 50(e)(3)(a) are incorporated into the HHC Act, and therefore service on theCorporation Counsel constitutes proper service of a Notice of Claim . . . Section 50 (e) wasenacted . . . to establish a uniform system for instituting tort claims against publiccorporations that would replace the numerous provisions that had developed under locallaws.” The later amendments to Section 50(e) clearly provided that service on the attorneyregularly engaged to represent the authority was appropriate. The Court noted that the billjackets and legislative history supported the determination that the amendments to Section50 (e) were made to provide an alternative party to whom service upon HHC could beaffected .

             Here’s some others to consider: In Gonzalez v. Board of Education of the City ofYonkers , 298 A.D.2d 358, 751 N.Y.S.2d 256 (2d Dep’t 2002), the plaintiff was injured afterfalling on stairs inside a school. Plaintiff claimed that the step had a “metal slipperycondition” which was described as a worn metal strip affixed to the edge of the steps. Noexpert proof was submitted. Instead, plaintiff relied on photographs to show that the metalstrips were worn down and sloped downward on one step. The defendant moved forsummary judgment to dismiss the complaint on the ground that the Notice of Claim wasuntimely. The Appellate Division agreed with the lower court that the Notice of Claim wastimely served, since it was sent by certified mail on the 90 ^th day following the date ofaccident . The fact that the defendant did not receive it until one month later was notdispositive of the timeliness of the Notice. The Appellate Division, however, reversed thedenial of summary judgment and dismissed the complaint, since it found that the staircasewas free of actionable defects, as a matter of law. It held that the worn condition of thestrips at the edges of the steps were not the basis for liability, and the photographs that weresubmitted did not show any actionable defects for which liability could be imposed. Adifferent result in the City of New York? (Take a look at New York City Building CodeSection 375(h), which requires skid-resistant strips.)

             And, in Jones v. City of New York , 300 A.D.2d 359, 751 N.Y.S.2d 522 (2d Dep’t2002), a medical malpractice action, the plaintiffs served a letter upon the defendant, Healthand Hospitals Corporation, by ordinary mail . The Appellate Division agreed with theSupreme Court in dismissing the complaint, in that a letter sent by ordinary mail was not avalid Notice of Claim. The letter was not verified, it did not set forth the nature of themedical malpractice, and it was not served personally or by registered or certified mail, asrequired by General Municipal Law Section 50-e(3). Finally, since the application to serve alate Notice of Claim was made beyond the two-year statute of limitations forcommencement of a wrongful death action against the Health and Hospitals Corporation, theCourt lacked any discretion to consider the petition.

             Be alert to the differences among these entities. Don’t assume that there is a unity ofinterest. Don’t assume that the MTA operates the LIRR. File a separate claim where thereis a separate title for the entity, and avoid some of these common mistakes:

1           The City of New York was separate from the Board of Education, but nowthat we have a “Department of Education”, this is the one time I would keepnaming and serving the “ Department of Education”, even though naming theCity is sufficient in all other circumstances where the act or omission is theresult of the actions of a municipal department or its employees.

2           The City of New York is not the New York City Health and HospitalsCorporation or the New York City Housing Authority (and, remember,although the Corporation Counsel does represent NYCHHC, it does not represent the Housing Authority).

3           Metropolitan Transportation Authority is not the NYCTA, LIRR, StatenIsland Rapid Transit Operating Authority, Metro-North.

4           My favorite: “MABSTOA” – Manhattan and Bronx Surface TransitOperating Authority. But isn’t this the NYCTA or MTA? NO , it is aseparate entity which operates the public bus lines in Manhattan and theBronx only. It does not operate the subways, (the NYCTA does). It does notoperate buses in any other borough (in Queens, Brooklyn and Staten Island,the NYCTA does). So name them separately in the Notice of Claim; servethem in person individually.

See, LoCiciro v. Metropolitan Transportation Authority , 288 A.D.2d 353, 733 N.Y.S.2d477 (2d Dep’t 2001) (claimant sued MTA for injury at LIRR station; leave after the statuteof limitations to add LIRR denied since the two were separate entities); Goldman v. City ofNew York , 287 A.D.2d 687, 732 N.Y.S.2d 78 (2d Dep’t 2001) (injury on broken steps atpublic school; notice of claim named both the City of New York and the Board ofEducation; complaint dismissed where only City named, since Board, not City, was properparty regarding negligent maintenance).

II.         THE 50-H HEARING

             a.           "Two Bites at the Apple"

             The term "50-h hearing" comes from the statutory provision which authorizes themunicipality to take pre-action testimony following service of a Notice of Claim, GeneralMunicipal Law Section 50-h. The 50-h hearing is designed to give the municipality (“city,county, town, village, fire district, ambulance district or school district”) an opportunity foran early investigation of the claim to allow an early resolution of such matters. Section 50-hmerely states that the municipality may demand “an examination of the claimant relative tothe occurrence and extent of the injuries or damages for which claim is made.” Innocentenough, right? Invariably, however, the 50-h hearing has allowed the municipalities theproverbial "two bites at the apple". Rarely, if ever, are cases settled after the hearing hasbeen held. Moreover, there are few cases interpreting the section and no specific limitationsin GML §50-h itself with regard to the scope of the hearing. All too often, it becomes a full-blown examination before trial, or worse. However, it should be limited in its scope to allowthe municipality to gain basic information to investigate the accident and the injuries, and toobtain necessary information concerning witnesses to the occurrence. At times, practitionersfor the municipalities believe the ambiguous language of the statute gives carte blanche onthe questions asked, clearly overextending the bounds of the statutory authority for thehearing. Objections to the scope of the questioning are often met with the threat of a motionto dismiss or an affirmative defense for failure to comply with the statute. Thus, adequatepreparation is the key for any appearance at the 50-h hearing.

             When an overzealous examiner is met, counsel for claimant should be diligent inreminding the examiner that the hearing is not an examination before trial or discovery tool. The examiner should be reminded that he/she has a right to inquire “relative to theoccurrence and extent of the injuries or damages”. Otherwise, if you don’t set limits, youmay give up more than you should. See Tardibuono v. County of Nassau , 181 A.D. 2d 879,581 N.Y.S.2d 443 (2d Dep’t 1992) (in medical malpractice action, improper to ask claimanther understanding of the claim and legal theories being made with regard to the medicalprocedures where she had not given informed consent; questioning is limited to thoseprocedures consented to); Alouette Fashions, Inc. v. Consolidated Edison Co. of New York,Inc . , 119 A.D.2d 481, 501 N.Y.S.2d 23 (1 ^st Dep’t 1986), aff’d, 69 N.Y.2d 787, 513 N.Y.S.2d114(1987) (§50-h demand that included broad and extensive” requests for documentsincluding financial statements and tax returns for three years, were “not properly included ina Comptroller’s Demand for examination”; Court held that language of §50-h was an“effective limitation of disclosure” and must be “strictly construed to limit disclosure”; Thepurpose of early investigation is satisfied with oral questioning solely); Wilson v. City ofJohnstown , 78 A.D.2d 932, 433 N.Y.S.2d 247 (3d Dep’t 1980) (municipality not entitled tofull disclosure that would allow it to “ascertain both liability and extent of exposure”;claimant cannot be asked question about expert’s report regarding claim). Failure to answerquestions will generally not lead to dismissal of the action. See Tardibuono , supra .

             And in order to preserve the issue of noncompliance with the provisions of §50-h,the municipality must include it as an affirmative defense in the answer. See Hoffman v.New York City Housing Auth. , 187 A.D.2d 334, 589 N.Y.S.2d 475 (1 ^st Dep’t 1992).

             Another quirk is the right of the municipality to ask for a physical examination. And, if they want a physical, it is incumbent upon the municipality to schedule it in a timelymanner. It is an obligation of the plaintiff to comply.

Compare:

(a)         Idi v. New York City Housing Authority , __ Misc.2d __, ___ N.Y.S.2d ___,(Supreme Ct., N.Y. County 2002), in which plaintiff filed a notice of claim for injuriessustained on the premises owned by New York City Housing Authority. The HousingAuthority served a demand pursuant to General Municipal Law Section 50(h), requestinga physical examination. The Court noted that an action could not be commenced untilplaintiff complied with the demand for the physical examination and a failure to complywith the demand could result in the dismissal of the complaint. The Court notedhowever, that the right to a physical could be waived and the remedy of dismissalrejected where the defendant does not take steps to conduct a physical in a timely andefficient matter. In this case, the plaintiff had appeared for the physical examination butwas required to wait for an hour to see the doctor. The office was reported to be“sweltering”. As a result, the plaintiff and counsel left the office. After that date,however, the Housing Authority neither demanded compliance nor attempted toreschedule the physical examination. The Court noted that the defendant had a duty totake further steps to procure the examination if it wanted to complete it and its failure todo so indicated acquiescence in plaintiff’s decision to file the summons and complaintwithout completing the physical examination. The Court noted that it would not be aburden on the Housing Authority to reschedule and conduct a physical examination andnoted that the statute never intended to allow the municipality to arbitrarily compelattendance on a date fixed by it and, thereafter, preclude the plaintiff from filing a claimwhen the municipal body was tardy in completing the requested examination. Thus, theCourt struck the affirmative defense of failure to appear for a physical examination. Itheld that the plaintiff was nonetheless required to attend the physical examination ifrequested by the Housing Authority which was requested before commencement of theaction and that plaintiff would be required to attend the physical examination even afterthe lawsuit had been initiated.

With:

             Wilson v. New York City Housing Authority , ___ A.D.2d ___, 756 N.Y.S.2d 279(2d Dep’t 2003). Plaintiff had brought a lawsuit alleging injury as a result of exposure tolead poisoning against the Housing Authority. Plaintiffs timely served a Notice of Claim. The Housing Authority served a Notice, pursuant to General Municipal Law Section50(h), seeking an oral examination and also a physical examination, and also soughtauthorizations for the production of medical records. Plaintiffs refused to provideauthorizations, and refused to produce the infant for a physical examination. Thedefendant went so far as to commence a special proceeding to compel plaintiffs tocomply with the discovery demands and received an order directing the plaintiffs toprovide authorizations and to produce the infant for a physical examination. Plaintiffsdid not comply with the order. Instead, some six years later , they commenced an actionseeking damages. Defendant then moved to dismiss, at which time the plaintiffsattempted to comply with the defendant’s demands, as set forth in the 1995 order. TheSupreme Court denied the motion to dismiss the Complaint. The Appellate Division,however, reversed, noting that a municipality is entitled to a physical examination underGeneral Municipal Law Section 50(h), and that compliance with that demand is acondition precedent, absent which no action for damages may be commenced. The Courtheld that the, “plaintiff’s unexplained failure to comply with the defendant’s demandsprecludes this action, and the Supreme Court was without authority to forgive this fataldefault”.

Rest assured, it will usually not happen. Earlier attempts at this proved to be anightmare for the City of New York and were phased out. The NYCHA, however, hasaggressively pursued this policy. My advice: let them have the physical.

Another recent innovation is to separate plaintiffs at the hearing, whereby one spouse(or a parent in an infant case) is excluded while the other testifies. This is based on anerroneous reading of Section 50(h), and is based on the assumption that the languagepermitting the claimant to appear with one other person applies to the Section 50(h) hearing. IT DOES NOT ! It applies to the physical examination! So, if confronted with this situation,challenge the municipal representative for the authority permitting the exclusion. If pressed,they will have to rely on two lower court cases that erroneously reference the languageregarding who may attend the physical as the basis for this argument.

             b.          "30 Days and File"

             All too often, the hearing date set by the municipality is several months after theclaim is presented, causing needless delay in starting the lawsuit. Indeed, the municipalityhas 90 days from the date of the filing of the Notice of Claim to request a to see if themunicipality requests a hearing. Section 50(h)(2). And, the scheduled date is often monthsinto the future. All too often, the claimant will wait the 90 days before commencing suit. But, YOU DON’T HAVE TO WAIT 90 days to file the Complaint!

             Under GML §50-i for Municipalities, and Public Authorities Laws, §1212 for theNew York City Transit Authority, however, a party may commence a lawsuit 30 days afterthe filing of the Notice of Claim unless a hearing is requested before then . See GML §50-i(municipalities); Public Authorities Law §1212 (New York City Transit Authority). GeneralMunicipalities §50(h)(5) prohibits commencement of the action if the hearing was requested. The filing dates for the Notice of Claim should be closely docketed so that a Complaint canbe filed immediately upon the expiration of the 30 days and before the 90 day periodafforded the municipality to request its statutory hearing. See Alouette Fashions, Inc. v.Consolidated Edison Co. of New York, Inc ., supra ; Franklin Society Federal Savings andLoan Assn., 66 Misc. 2d 675, 322 N.Y.S.2d 186 (Sup. Ct., N.Y. County 1971).

             Of course, the City can still request a hearing before the 90 days period expires, inwhich case the complaint stands, but the City can preserve its right to a hearing. See Alouette Fashions, Inc. v. Consolidated Edison Co. of New York, Inc ., supra .

             c.           Early Preparation

             While the §§ 50(e) and 50(h) provisions invariably delay the commencement of thelawsuit, it also encourages early preparation of the case. Prompt investigation and gatheringof facts, interviewing witnesses and obtaining medical records should be a priority duringthis time. Not only will it assist in evaluating the claim and preparing for the hearing, but itwill also get the case ready for trial before the action is even commenced.

III.        VENUE REQUIREMENTS

             Once you complete the Notice of Claim and §50(h) steps in the process, you mustdetermine the proper venue for commencing suit. Section 504 of the CPLR sets forth therules for venue selection. It provides that the venue for actions against a County is in theCounty. In cities, other than the City of New York, and in all towns, villages, schooldistricts or district corporations, venue is proper in the county in which they are situated. For the City of New York, venue is proper in the county in which the claim arose, that is,where the accident took place. If it took place outside of the City’s boundaries, the venue isproper in New York County (for example, accidents which occur in the City’s upstatereservoirs).

             Section 505 of the CPLR addresses the venue requirements for actions against“public authorities”. It provides that actions against a public authority shall be broughteither (a) in the county where the authority has its principal office or (b) in the county whereit has facilities involved in the action. A good example is the New York City HousingAuthority, which has its main office in New York County. You can always opt to venue anyclaim against the Housing Authority in New York County, but you can venue it in anycounty in which it has facilities at which the accident occurred.

             But, before you think that every case can be venued in Kings County for mattersinvolving the New York City Transit Authority (which has its headquarters at 130Livingston Street), Section 505(b) tells you otherwise. Section 505(b) is a venue provisionspecifically designed to avoid that result, and provides that in actions involving the TransitAuthority the rules are the same as those for the City of New York: venue must be thecounty where the accident occurred, or if outside the City’s limits, in New York -- not Kings--County .

             An interesting twist occurs for cases involving the Port Authority of New York andNew Jersey. Section 7106 of the Unconsolidated Laws provides that cases against the PortAuthority can be brought within any county situated “wholly or partly within the port ofNew York”. The PA is deemed a resident of each such county . So where can you venue aclaim against the PA where the decedent resided in Queens and the accident occurred at thePA’s JFK International Airport in Queens County? The answer is Bronx County. In Rodriguez v. Port Authority of New York and New Jersey , 293 A.D.2d 325, 740 N.Y.S.2d323 (1 ^st Dep’t 2002), the Appellate Division, First Department held that Bronx County wasthe proper venue for that action since the Port of New York lies “wholly or partly” in BronxCounty.

IV.        CASES YOU SHOULD KNOW

               Now that you’ve figured out how to get past the preliminary procedural requirementsfor municipal claims, it’s a good time to review those key decisions which will help youdecide if you should get involved at all. Just as there are certain procedural “rules”, there arecertain common law “rules” that the court’s have developed on public policy grounds -- i.e.,trying to protect towns and cities from financial ruin. Bear in mind that New York is a bigstate. These rules may benefit the big city of New York, but they really developed with aneye toward the little upstate towns and villages that don’t have the same financial resources.

Here are some of my favorite decisions that will keep you from making costlymistakes against a municipal defendant. They also show how “unique” municipal liabilityreally is.

             1           SPECIAL DUTY CASES

             There is a line of cases that grants municipalities absolute immunity from liability,where, although government employees and agencies fail to act, or act negligently and causeharm, -- there is no “special relationship” between the governmental body and the victimthere is no basis for a claim. The “special duty” that is required is pure judicial fiat. But,you must be familiar with this line of cases to avoid being dismissed on motion years afteryou file the claim. Read the following cases to give an overview of just how tough it can beto establish the elements of a special relationship:

1           An assumption through acts or promises of an affirmative duty to actfor the victim;

2           Knowledge by the municipal employees that inaction can lead toharm;

3           Direct contact between victim and the municipal agent; and

4           Justifiable reliance on the municipality’s affirmative commitment toact.

Delong v. City of Erie , 60 N.Y.2d 296, 469 N.Y.S.2d 611 (1983) (City and County liable fordeath caused by negligent handling of 911 call where directions were given and assurancesof safety made); Cuffy v. City of New York, 69 N.Y.2d 255, 513 N.Y.S.2d 372 (1987)(requests for police protection to prevent assault did not create special relationship); Florence v. Goldberg , 44 N.Y.2d 189, 404 N.Y.S.2d 583 (1978) (City liable where regularschool crossing guard was absent and child struck by a car); Lauer v. City of New York , 95N.Y.2d 95, 711 N.Y.S.2d 112 (2002) (suit alleging negligence as a result of medicalexaminer’s failure to correct erroneous autopsy report which listed death as homicide andcaused criminal investigation of child’s father was dismissed because no special duty wasowed to parent to either report the results accurately or to correct the mistake; also noliability for ministerial actions).

             Along these lines, the decision in Tango v. Tulevich , 61 N.Y.2d 34, 471 N.Y.S.2d 73(1983) should be reviewed since it immunizes the municipality from suit for thediscretionary acts of its employees, even when those duties are negligently conceived orperformed.

             2           THE SPECIAL USE CASES

We will be discussing the new sidewalk law in the City of New York during theprogram. However, it is still important to know what a “special use” is, even in the City ofNew York. Usually, sidewalk defects are the responsibility of the municipality. Generally,the abutting private property owner owes no duty to the public to repair the adjoiningsidewalk. However, where the cause of the accident is a “sidewalk appurtenance installedfor the special use or benefit of the owner of the abutting premises”, the property owner is liable for the accident and the municipality may seek “indemnity” for the claim of damages. D’Amrosio v. City of New York , 55 N.Y.2d 464, 450 N.Y.S.2d 149 (1982) (a water shut offvalve in the sidewalk was a “special use”). Note that the municipality remains responsibleas the owner of the sidewalk. However, D’Ambrosio allows the apportionment ofresponsibility between private owner and municipality.

             Some examples of a special use are: Rosario v. City of New York , 289 A.D.2d 133,735 N.Y.S.2d 50 (1 ^st Dep’t 2001) (sidewalk used as driveway); Parros v. Assad , 212 A.D.2d520, 622 N.Y.S.2d 298 (2d Dep’t 1995) (sidewalk vault); Roselli v. City of New York , 201A.D.2d 417, 607 N.Y.S.2d 672 (1 ^st Dep’t) (metal sidewalk grate); Schectman v. Lappin , 161A.D.2d 118, 554 N.Y.S.2d 846 (2d Dep’t 1990) (oil filler cap). See also cases cited indiscussion for PJI §2:111.

             3           HIGHWAY DESIGN

Any consideration to proceed with a claim involving a defective roadway designmust include the decision in Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409 (1960). In Weiss , the Court of Appeals held that municipalities are immune from suit fordeterminations regarding the design of roadways and traffic control signals. It rejected theattempt to allow expert proof to be used by the claimant to challenge the determination ofthe municipal designers. In one (infamous?) passage the Court set the tone for future claims:

“ In the area of highway safety, at least, it has long been thesettled view, and an eminently justifiable one, that courts shouldnot be permitted to review determinations of governmentalplanning bodies under the guise of allowing them to bechallenged in negligence suits; something more than a merechoice between conflicting opinions of experts is required beforethe State or one of its subdivisions may be charged with a failureto discharge its duty to plan highways for the safety of thetraveling public” 7 N.Y.2d at 588, 200 N.Y.S.2d at 415. (Emphasis added)

The “something more” showing that is needed is ambiguous for a reason – the standard willbe kept very high to minimize municipal exposure in this area. As an example, take a lookat the recent decision in Affleck v. Buckley , 96 N.Y.2d 553, 732 N.Y.S.2d 625 (2001).

             In Affleck , a motorist was attempting to enter a shopping center driveway andcrossed opposing traffic while making a left turn. He collided with a vehicle driven by oneof the defendants. He also sued the County of Nassau, alleging that the County failed toinstall a traffic signal at the location. The claim included an allegation that the County hadfailed to conduct traffic studies, and had instead relied on a privately obtained study to makeits determination. The Supreme Court had denied summary judgment. The AppellateDivision, however, reversed. The Court of Appeals affirmed the reversal.

             Apparently, the shopping center owner had commissioned its own study of trafficconditions in the area because of difficult in having its customers exit its parking lot. Thatprivate study was submitted to the County for consideration of its recommendation that atraffic light be installed. The study not only focused on the difficulties in exiting the parkinglot, but it had also analyzed traffic conditions for drivers attempting to enter the parking lotin a manner similar to the defendant driver. It had reported, however, that the conditions formaking turns into the parking lot were within the acceptable parameters of the FederalDepartment of Transportation.

             The County had opposed summary judgment based upon its review of that privatestudy, and also on its own studies of traffic conditions. It had conducted on-siteobservations and reviewed motor vehicle accident data. The County then concluded that atraffic signal was unwarranted, and took no further action, other than to remove trees and afence in order to improve visibility for drivers, and adding a fence to alert oncoming driversto the approaching driveway.

             The Appellate Division found that “the County submitted an affidavit by theAssistant to the Deputy Commissioner for Traffic Engineering of the County of Nassaustating that the County had studied the area in question for almost a year in response tocitizen complaints, and conducted visits and performed traffic counts in response to thereport of PSC Engineering, and had evaluated accident reports of the general area, makingsits determination not to install a ”traffic light”. 276 A.D.2d at 508, 714 N.Y.S.2d at 110. The County had also “submitted evidence before the accident that it had completedmeasures to improve the safety of the driveway area within its control”.

             The Appellate Court further concluded that the private consultant’s opinion that atraffic signal should be installed “was insufficient to overcome the qualified immunity assomething more than a mere choice between conflicting opinions of experts, is requiredbefore the State, or one of its subdivisions may be charged with failure to discharge its dutyto plan the highways or the safety of the traveling public”, (quoting from Weiss v. Fote , 7N.Y.2d 579, 588, 200 N.Y.S.2d 409 (1960)). 276 A.D.2d at 509-510, 714 N.Y.S.2d at 110.

             The Appellate Division majority also added that “it appears that such arecommendation [to install a light] even if followed would not have prevented the instantaccident . . where the defendant’s vehicle was turning into the shopping center drivewayagainst oncoming eastbound traffic”. 276 A.D.2d at 510, 714 N.Y.S.2d at 110.

             The dissenter in the Appellate Division, however, was perplexed over the fact thatthere had been a number of collisions at that location, and that Waldbaum’s had offered topay for a traffic light. The dissent noted that it was “ineluctable that the remedial measuresproposed by the County were not reasonable in that while they partially alleviated theproblems of exiting the driveway they did not address the problems of entering thedriveway”. 276 A.D.2d at 511, 714 N.Y.S.2d at 112.

             The Court of Appeals unanimously affirmed the dismissal by the Appellate Division,Second Department, resting squarely on Weiss v. Fote and its principles for support. It held:

-1         The County had in fact studied the very same question of risk ofwhich the plaintiff was complaining, thus triggering the qualified immunity of Weiss v Fote ,70 N.Y.2d 579, 200 N.Y.S.2d 409 (1960), and Friedman v. State of New York , 67 N.Y.2d271, 502 N.Y.S.2d 669 (1986).

                         -2         The Court held that neither the letters urging the County to install asignal, nor the recommendation by the private engineering firm to install a signal, raised anissue of fact regarding the reasonableness of the County’s decision not to install the signal. Even though the letters may have alerted the County to a situation that warranted furtherstudy, they were not a substitute for, nor could they raise any doubt upon, the determinationof the authorized traffic planning authority.

                         -3         The Court squarely held that “a recommendation from a privateengineering firm that a signal be installed at a particular location does not itself raise atriable issue of fact . . . [because] something more than a choice between conflictingopinions of experts required before a governmental body may be held liable for negligentlyperforming its traffic planning function. The plaintiff must show, not merely that anotheroption was available, but also that the plan adopted lack a reasonable basis.” It held that theCounty had adequately demonstrated that its decision not to install a traffic signal was basedon a number of factors that were broader than the immediate concerning of the private party.

             Affleck simply shows the unwillingness of the Court of Appeals to place additionalburdens on the governmental bodies that have to make decisions about highway and trafficplanning. The influx of private engineering firms into this area would only add to thatburden, since private parties may have more money or resources and more of a vestedinterest in insuring safety in the area where they are most familiar. The Court apparently isunwilling to allow open-ended liability issues to exist in this area. The “something more”showing that is required under Weiss and reiterated under Affleck is ambiguous for a reason– the standard will always be very high, except in the most egregious circumstances whereeven the most negligent or simplistic planning decisions can’t be justified.

             And, if you think the municipality can’t just create a committee to gain the benefit of Weiss v. Fote , consider DeLeon v. New York City Transit Authority , ___ A.D.2d ___, 759N.Y.S.2d 465 (1 ^st Dep’t 2003). The plaintiff was injured after falling on the subway tracks. Plaintiff had intended to show, through expert testimony, that the train entered the station ata speed pf 28 mph, rather than a speed of 20 mph or less. The New York City TransitAuthority moved for summary judgment dismissing the Complaint, and argued that its“speed policy decisions are entitled to a qualified immunity”. It submitted an affidavit froma member of its “speed policy committee” which indicated that there is a regular review ofappropriate train speed for all segments of track. Ultimately, the policy committee adheredto its policy that “a train should enter a station at the speed it was traveling in the tunnel”. Italso submitted expert affidavits to the effect that “the 20-mph policy urged by plaintiff’sexpert is contrary to universally accepted rapid transit system operating practice and has noengineering logic or scientific basis”. Relying upon Weiss v. Fote , the Appellate Divisionheld that summary judgment was properly granted, since the Transit Authority adopted apolicy that has a reasonable basis in safety and efficiency. Thus, it held that the TransitAuthority was entitled to a qualified immunity and could not be held liable on the groundthat the train should have reduced its speed as it entered the station, citing Stevens v. NewYork City Transit Authority , 288 A.D.2d 460, 733 N.Y.S.2d 192, and Chase v. New YorkCity Transit Authority , 288 A.D.2d 422, 733 N.Y.S.2d 233, leave denied , 98 NY.2d 611, 749N.Y.S.2d 3 (both cases were discussed in last year’s presentation on Municipal Liability andDecisions 2002). The Court also held that the plaintiff’s expert’s assertion that an attentivetrain operator would have seen the plaintiff in time to stop was pure speculation and wasunsupported by any facts in the record or by his own personal observations.

             4           STUDENT/TEACHER ASSAULT

             Two cases are critical for an understanding of a municipality’s responsibility forassaults involving students and teachers.

             In Ohman v. Board of Education of The City of New York , 300 N.Y. 306 (1949), theCourt of Appeals found no liability where a student unexpectedly threw a pencil across theroom and struck another student in the eye. The fact that the teacher was out of the room atthe time did not create an issue regarding supervision. See also , Mirand v. City of New York ,84 N.Y.2d 44, 614 N.Y.S.2d 372 (1994)(schools have duty to supervise students and standin the place of a parent).

             In Vitale v. City of New York , 60 N.Y.2d 861, 470 N.Y.S.2d 358 (1983) the Citywas not liable for an attack on a teacher attempting to break up a fight between students –the failure to provide a security plan was a governmental function, and there was no dutyowed by the City to the teacher to provide such measures. See also , Glick v. City of NewYork , 53 A.D.2d 528, 384 N.Y.S.2d 184 (1 ^st Dep’t 1976), aff’d , 42 N.Y.2d 831 397N.Y.S.2d 382 (1977) (no liability for lack of security when teacher raped by student).

             But consider the decision in Pascucci v. Board of Education of the City of New York ,___ A.D.2d ___, 758 N.Y.S>2d 54 (1 ^st Dep’t 2003). Plaintiff was a special educationteacher at a junior high school who was injured when one of her students assaulted her aftershe broke up an altercation between two students. Plaintiff had requested security to theclassroom immediately. The plaintiff called both when the students began to argue andwhen they began to make physical contact. No help came and plaintiff called again 15minutes later, requesting assistance. The school secretary acknowledged her request. However, the security guard did not arrive and plaintiff was physically assaulted by thestudent. The Supreme Court granted the Board of Education’s motion for summaryjudgment. The Appellate Division reversed, and held that there were issues of fact as towhether the school’s security measures created a special relationship between the Board ofEducation and its teachers. The Appellate Division outlined the elements for establishing aspecial relationship, including (a) the assumption of an affirmative duty to act; (b)knowledge that inaction would lead to harm; (c) direct contact between the agents and theinjured party; and (d) a justifiable reliance on the affirmative undertaking. The lower courtheld that the calls for security and the acknowledgment by the school secretary were notsufficient to create a special duty. The Appellate Division disagreed. It noted that theteacher was required to attend yearly mandatory workshops. Teachers were instructed in theprocedures to be followed in an emergency. They were given a safety manual detailingemergency procedures for all school personnel. Teachers were required to alert the principalor assistant principal regarding safety and security issues. They were required to alert theoffice through the internal intercom system of an emergency. It advised the teachers thatthere are uniformed security guards on the premises who are equipped with walkie-talkies,and who are required to be in touch with the principal’s staff at all times, and to respond toany emergency situation that might arise. All personnel understood that, in the event of anemergency, the school secretary was the only person who had to be alerted, and the secretarywould then dispatch security to the classroom. Relying on Delong v. County of Erie , 60N.Y.2d 296, 469 N.Y.S.2d 611, the Court held that there was a question of fact as to whetherthe secretary’s acknowledgment of the call for help was an implicit promise to act on theteacher’s behalf. By providing an intercom connection to allow contact between thesecretary and the office, and setting up a system where the secretary would then immediatelydispatch the principal or security guards to aid the teacher, was sufficient to raise issues offact. The court found it persuasive that, even though the secretary made no express promiseor representation to provide assistance, “neither did she refuse plaintiff’s plea forassistance”. Compare this with the decision in Vitale v. City of New York , 60 N.Y.2d 861,470 N.Y.S.2d 358 (1983), in which the Court of Appeals dismissed a claim under almostidentical factual circumstances. The Court held in Vitale that a special relationship had notexisted, despite the existence of a school safety plan. The Court held that even if the securityrules were violated, “nothing in the adoption or content of the plan warrants a finding that itwas designed or intended especially for his benefit or that of other teachers in the school”.

             5           SERVICES     

             The municipality is not required to provide certain services to the public at large.

             Thus, the failure to provide and maintain streetlights, absent a showing of notice of aspecific danger, does not create liability. Thompson v. City of New York , 78 N.Y.2d 686,578 N.Y.S.2d 507 (1991).

             Nor does the failure to provide a water supply to maintain its hydrant system createliability. Steitz v. City of Beacon , 295 N.Y. 51 (1945); H.R. Moch Co., Inc. v. RensselaerWater Co. , 246 N.Y. 160 (1928).

             There is also no duty to provide adequate fire protection. Messineo v. City ofAmsterdam , 17 N.Y.2d 523, 267 N.Y.S.2d 905 (1965); Motyka v. City of Amsterdam , 15N.Y.2d 134, 256 N.Y.S.2d 595 (1965).

             6           FIREFIGHTERS

             General Municipal Law Section 205-a provides a special right of action forfirefighters injured in the course of their duty. Section 205-e is the equivalent for policeofficers. However, one of the best decisions ever written regarding firefighters remains McGee v. Adams Paper & Twine Co. , 25 A.D.2d 186, 271 N.Y.S.2d 698 (1 ^st Dep’t 1966),aff’d, 20 N.Y.2d 921, 286 N.Y.S.2d 274 (1967). The First Department’s discussion isinsightful and this well-written decision should be studied before proceeding in thisspecialized area – even before reading the Court of Appeals most recent pronouncement in Giuffrida v. CitiBank Corp. , 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003).

             7           SNOW AND ICE

If you really want to sue a municipality for failing to clean up after a snowfall,perhaps you should read Valentine v. City of New York , 86 A.D.2d 381, 449 N.Y.S.2d 991(1st Dep’t 1982), aff’d , 57 N.Y.2d 932, 457 N.Y.S.2d 240 (1982). In Valentine , the Courtset forth the general rules for municipal liability in this area. The facts involved a heavysnow and ice storm, which was described as "one of the worst in 50 years". The Courtdiscussed the numerous factors to consider before imposing liability, including the passageof time, the freezing temperatures, the severity of the storm, and the efforts taken by themunicipality in order to clear snow and ice from the walkways.

             In Valentine , there was a severe ice storm which dropped 2-3 inches of ice on theground. The temperature fell to as low as 17 degrees and did not rise above freezing in the30 hours between the end of the storm and the plaintiff's fall. The Court held that, under thecircumstances, the City owed no duty to the plaintiff and could not be held liable for theplaintiff's accident as a matter of law .

             The discussion that followed sets forth the general state of the law in New York andthis case should be read carefully in order to ascertain the viability of any snow and iceclaim. The decision is a blueprint for the defense that a municipality will undertake in thesematters. It allows a city to set forth the steps taken to clear primary and secondary streets,and to set out its plans and priorities for clearing such streets. Moreover, the fact that thestorm and the weather were severe are additional factors which make liability fact intensive.

             The First Department tried to dilute this holding in Garricks v. City of New York,300 A.D.2d 247, 753 N.Y.S.2d 54 (1 ^st Dep’t 2002). However, given Valentine , these casesare, at best, difficult to prove against a municipality acting in a governmental capacity. Youmust know this area to distinguish the liability issues that arise for example, under NewYork’s new sidewalk law.

             8           Enforcement of Safety and Building Codes

So you have a case where a building collapses and it turns out the City of New Yorkwas aware of numerous Building Codes violations but never ordered them corrected. Greatcase, you think? Unfortunately, these is no liability, as the discussions in WorthDistributors, Inc. v. Latham , 59 N.Y. 2d 231, 464 N.Y.S.2d 435 (1983); O’Connor v. City ofNew York , 58 N.Y. 2d 184, 460 N.Y.S.2d 485 (1983) and Sanchez v. Village of Liberty , 42N.Y. 2d 876, 397 N.Y.S.2d 782 (1977) make apparent.

V.          SIDEWALK CASES: ISSUES REGARDING BIG APPLE MAPS,

TRIVIAL DEFECTS, SPECIAL USES AND OPEN AND

OBVIOUS CONDITIONS

             Now that we have a pretty good idea of how tricky “City” cases can be, I wanted tofocus on the issues that will arise in one particular type of case that always causes problems: the trip/slip and fall.

A.          PROVING “PRIOR WRITTEN NOTICE” -- THE BIG APPLE MAP

             On June 4, 1980, Section 7-201 of the New York City Administrative Code cameinto effect.

Ҥ 7-201 Actions against the City.

c. 1. As used in this subdivision:

             (a) The term ‘street’ shall include the curbstone, an avenue,underpass, road, alley, lane, boulevard, concourse, parkway, road orpath within a park, park approach, driveway, thoroughfare, public way,public square, public place, and public parking area.

             (b) The term ‘sidewalk’ shall include a boardwalk, underpass,pedestrian walk or path, step and stairway.

             (c)         The term ‘bridge’ shall include a viaduct and anoverpass.”

                                                 *                        *                        *

“2. No civil action shall be maintained against the city for damage toproperty or injury to person or death sustained in consequence of anystreet, highway, bridge, wharf, culvert, sidewalk or crosswalk , or anypart or portion of any of the foregoing including any encumbrancesthereon or attachments thereto, being out of repair, unsafe, dangerous orobstructed , unless it appears that written notice of the defective, unsafe,dangerous or obstructed condition, was actually given to thecommissioner of transportation or any person or department authorizedby the commissioner to receive such notice, or where there wasprevious injury to person or property as a result of the existence of thedefective, unsafe, dangerous or obstructed condition, and written noticethereof was given to a city agency, or there was writtenacknowledgement from the city of the defective, unsafe, dangerous orobstructed condition, and there was a failure or neglect within fifteendays after the receipt of such notice to repair or remove the defect,danger or obstruction complained of, or the place otherwise madereasonable safe.

3. The commissioner of transportation shall keep an indexed record ina separate book of all written notices which the city receives andacknowledgement of which the city gives of the existence of suchdefective, unsafe, dangerous or obstructed conditions, which recordshall state the date of receipt of each such notice, the nature andlocation of the condition stated to exist and the name and address of theperson from whom the notice is received. This record shall be a publicrecord. The record of each notice shall be maintained in the departmentof transportation for a period of three years after the date on which it isreceived and shall be preserved in the municipal archives for a period ofnot less than ten years.

4. Written acknowledgment shall be given by the department oftransportation of all notices received by it.”

Make no mistake about it: this statute, like many others throughout the State, is designedto prevent recoveries by victims of defective sidewalks. It basically provides that no civilaction for damages can be maintained unless prior notice in writing of the defectivecondition was provided to the Commissioner of the Department of Transportation at least 15 days prior to the occurrence. This moratorium was ostensibly designed to allow theCity of New York a reasonable opportunity to investigate the claimed defect and, ifneeded, to repair it. Thus, a person injured within the 15-day window following receiptof the written notice was deprived of a remedy. The problem was: it didn’t matter howmuch time the City had to repair the defect, since no one was giving written notice tosatisfy the requirement.

             Enter the Big Apple Pothole and Sidewalk Protection Corporation. We all knowhow our current Mayor and Corporation Counsel have maligned these maps. We all seehow the attorneys for the City attack these maps as the creatures of greedy trial lawyersseeking to capitalize on a City with limited resources to repair every little defect. Nonetheless, without the work of Big Apple over the past twenty years, how manyvictims of the City’s neglect would have gone without remedy? Is there any doubt that itserved an important public function?

             WHAT ARE THESE “MAPS”?

             To win a sidewalk defect case where prior written notice is still required in theCity of New York, you must understand these maps and how they work.

                         i.           Are They Legally Sufficient To Establish Notice?

                         The Courts disagree with the Mayor and the Corporation Counsel andhave consistently held that the maps are sufficient to establish notice of a defect. Remember, the maps are not being offered to prove the merits of the claimed defect, butrather serve to satisfy the statute’s requirement that notice be provided. Be careful of theargument advanced at times by the City’s attorneys that the maps are “hearsay” and notadmissible. Remind the Court that the plaintiff has met its burden of the conditionprecedent -- notice of a condition. See , Weinreb v. City of New York , 193 A.D.2d 596,597 N.Y.S.2d 432 (2d Dep’t 1993); Becker v. City of New York , 131 A.D.2d 413, 516N.Y.S.2d 225 (2d Dep’t 1987); Acevedo v. City of New York , 128 A.D.2d 488, 512N.Y.S.2d 414 (2d Dep’t 197); In re Big Apple Pothole and Sidewalk ProtectionCorporation, Inc. v. Ameruso , 110 Misc.2d 688, 442 N.Y.S.2d 860 (Sup. Ct. N.Y.County 1981).

             ii.          How Do You Read Them?

                         You must know that the maps cover only (a) sidewalks, (b) curbs, and (c)crosswalks. They do not cover the streets.

                         Employees of the Sanborn Map Company place markings on the maps toindicate the presence of a defect. Those markings coincide with the map legend that isused by Big Apple and served on the City’s Prior Notification Unit, along with the maps. The map and legend must both be placed into evidence. A sample map and legend areattached.

                         iii.         What Will The City Do In Response?

                         The City has devised numerous strategies to attack the maps and, therebynotice and the condition precedent to the claim. Sometimes, they will stipulate toadmitting the map and legend into evidence, without conceding the existence of a defect. There is a danger to you in that the maps will be hard for a jury to comprehend withoutexplanation. The City will hope that you will call Big Apple or the City may subpoena aBig Apple representative on its own. Either way, they want to bash the map.

                         The City has devised a script to attack the Big Apple representative tosuggest that (1) Big Apple doesn’t prepare the maps; (2) Big Apple doesn’t maintainquality control over the mapping process; (3) Big Apple doesn’t check the maps againstdefects actually in existence; (4) Big Apple drops hundreds of maps in shopping bags atDOT; (5) Big Apple doesn’t know if a defect is actually at the location because it nevergoes into the field with Sanborn employees; (6) the defects and maps are not to scale; (7)Big Apple was created by lawyers intent on suing the City; (8) Big Apple gets paid for aninitial search and gets a bigger fee if a map showing a defect exists; (9) Big Apple gets asubpoena fee and an additional appearance fee to testify at trial; and (10) Big Appledoesn’t have a set of “standards” to guide Sanborn on what constitutes a “defect”.

                         These are ten of the common avenues of attack. There are otherarguments used. But, all are designed to get the Big Apple representative to concede,under oath, that there is no guarantee of the map’s reliability.

                         None of this changes the fact that from 1982 to 1987 the City Prior NoticeUnit used the same maps to inspect and repair the City’s sidewalks. The City actuallytook each map and numbered each defect -- hundreds of thousands of them . The Citycreated a “Map Form” to correspond with the numbered maps and sent field inspectors tosurvey the sidewalks and verify the presence of the Big Apple defects. If a defect waspresent, the City did two things: a) it violated the adjoining property owner, and b) itsent repair crews out to fix the defects it had found. Apparently, it found plenty ofdefects and fixed a good number of them, because in the last year in which the Cityconducted routine inspections and repairs the number of defects reported by Big Applewas cut by one-half from the prior year.

                         So, with a system in place and progress being made, what does the Citydo? It abandons this entire program ! From 1988 to the present, the City has receivedthousands of maps from Big Apple. Certainly, those maps contained evidence ofverifiable defects and hazards. So what, responds the City; we will take these maps,“file” them, and do nothing to inspect and repair the sidewalks on a routine basis.

                         Support for this is included in the attachments to this outline. Use them! They give a jury something to consider when the City attempts to claim it is helpless torespond to this onslaught of lawsuits. Consider how favorably any jury would respond ifthe City could stand before it in these cases and state: “We have a routine inspection andrepair program with several employees. We have repaired thousands of defects becauseof it. We don’t ignore the problem by doing nothing . We are doing our best and wecontinue to improve the conditions of the sidewalks.” Now, take those arguments anduse them to your favor -- because, in fact, the City does none of those things!

                         iv.         Making The Maps “Real”

                         Now that the map is in evidence, you need to make the map come alive, oryou will leave the jury with some lines and a legend to decipher on its own. So, whatshould you do?

                         First, blow up the map and legend so that the jury can match it up to thelocation and defect described by your client. In this way, the jury has a visual guide tounderstand the testimony and give credence to your client’s testimony.

                         Second, remember those photographs attached to the Notice of Claim, oh,so long ago? Blowing them up is essential. In this way, your client can show the jury thelocation and condition, thereby giving a “3-D” view of the two dimensional map thatcoincides with the defect reported to the City. You can convincingly argue later on that itwas no “coincidence” that your client fell on the very defect previously reported to theCity.

                         Third, consider having an expert explain to the jury why the defect is atripping hazard. While it may seem like overkill on such a “simple” matter, it will helpthe jury to understand that this is not one of those “trivial” defects or nuisance claims.

                         v.           Does The Line Match The Defect?

                         A favorite defense of the City is the claim that the “unreliable” mapdoesn’t match up with the defect depicted on your photo. The map may show a linedrawn horizontal to the curb to depict the trip hazard in front of 328 Chauncey Street,Brooklyn, New York. Your photographs, however, show a raised slab running vertical tothe curb. The City will argue the notice is “defective”. (The City, of course, wants itboth ways -- on the one hand if the defect claimed is verified by the map, it argues thatthe maps are unreliable and inaccurate; but on the other hand if there is any discrepancy,the City argues that the maps are accurate in description and location, but the defect iseither different or in a different place.)

                         Consider then, Katz v. City of New York , 87 N.Y.2d 241, 638 N.Y.S.2d593 (1995), in which the Court of Appeals held that a subsequent map which does notindicate a defect previously noted on an earlier map is controlling and, in effect, erasesthe earlier defect, even though it was concededly never inspected or repaired when thelater map was filed . So, if the most recent map fails to show a defect, you are out ofluck. Dallal v. City of New York, 257 A.D.2d 354, 683 N.Y.S.2d 63 (1 ^st Dep’t 1999)(later map must be considered “most accurate”); Welsh v. City of New York, 258 A.D.2d647, 685 N.Y.S.2d 791 (2d Dep’t 1999) (map filed four months before accident failed toshow defect, even though prior map did). In effect, the Court gave the City the benefit ofhaving adopted a “do nothing” approach to sidewalk repairs.

                         Remember, the “literal nicety and exactness” that Brown didn’t require fornotices of claim? Well, fortunately the courts give the map some leeway also. The issueof accuracy is usually for the jury to decide. See , Vasquez v. City of New York , 298A.D.2d 187, 748 N.Y.S.2d 140 (1 ^st Dep’t 2002) (map showed “broken or uneven curb” --sufficient notice of a broken sidewalk to create jury issue); Ruiz v. City of New York , 289A.D.2d 42, 734 N.Y.S.2d 35 (1 ^st Dep’t 2001) (map which showed 14 defects in areasufficient to raise jury issue as to whether “hole” was one of them); Patane v. City of NewYork , 284 A.D.2d 513, 727 N.Y.S.2d 114 (2d Dep’t 2001) (map showed “extendedsection of uneven sidewalk” -- plaintiff testified defect was a “big crack”, and also mayhave slipped on ice; jury would resolve discrepancy); Johnson v. City of New York , 280A.D.2d 271, 720 N.Y.S.2d 124 (1 ^st Dep’t 2001) (issue as to whether map gave notice of“particular” defect was for the jury, since map showed three symbols in close proximity -- two showed “raised portions” and one showed a “hole or hazardous depression”). Seealso , David v. City of New York , 267 A.D.2d 419, 700 N.Y.S.2d 235 (2d Dep’t 1991)(constructive notice is not the standard). And, recently, the Appellate Division, SecondDepartment in Quinn v. City of New York , 2003 NY Slip Op. 14284 (2d Dep’t May 19,2003) held that the jury should determine the factual disputes regarding the preciselocation of the plaintiff’s fall. There, the City argued that the Big Apple map showed a“raised portion” of sidewalk, while the plaintiff described something different (albeit notdescribed in the decision). The Court held it was properly resolved by the jury.

             However, the Court reversed and ordered a new trial because the trial judgecharged the jury pursuant to PJI 2:225, which included an instruction on constructivenotice . No, No, said the Appellate Division. Constructive notice simply does not applyand 2:225 applies only when a prior written notice statute is not involved (for example,cause and create).

                         The City will rely on the following:

                         Camacho v. City of New York , 218 A.D.2d 725, 630 N.Y.S.2d 557 (2dDep’t 1995) (plaintiff claimed a hole , “three feet wide by about three feet long by aboutone foot deep”, caused accident; map showed a “raised portion of sidewalk” -- directedverdict dismissing complaint affirmed); Curci v. City of New York , 209 A.D.2d 574, 619N.Y.S.2d 98 (2d Dep’t 1994) (depression in grassy area between curb and sidewalk wasnot the “raised portions” of sidewalk a few feet away -- complaint properly dismissed); Waldron v. City of New York , 175 A.D.2d 123, 571 N.Y.S.2d 816 (2d Dep’t 1991) (nodefects marked on map because “CONS” or construction occurring at time of inspection -- no notice established).

             In Brill v. City of New York , 2003 NY Slip Op. 14213 (2d Dep’t May 19, 2003),the Appellate Division, Second Department affirmed summary judgment in favor of theCity of New York where there was neither prior written notice nor any proof of a createddefect. The Court specifically held:

“A ‘Big Apple’ map indicating defects in the sidewalk adjacent to the area of the accident did not providesufficient notice of the alleged defect at the location ofthe fall and therefore did not satisfy the written noticerequirement of Administrative Code of the City of NewYork §7-201(c) (see Curci v. City of New York , 209A.D.2d 574; Goldstein v. Town of Babylon , 145 A.D.2d534; Leary v. City of Rochester , 115 A.D.2d 260, aff’d,67 N.Y.2d 866).” (Emphasis added.)

B.          PRIOR WRITTEN NOTICE - THE EXCEPTION, NOT THE RULE ?

             What happens if the City does not have prior written notice? The claim may still beviable. There are several avenues for presenting a meritorious claim, even though priornotice does not exist. Indeed, when the number of claims that are properly brought underthe common law are considered, prior notice statute can be considered the exception and notthe rule. Indeed, the Court of Appeals, in Walker v. Town of Hempstead , 84 N.Y.2d 360,618 N.Y.S.2d 758 (1994), held that prior notice rules are in derogation of the common law,they will be strictly construed within the authority under Section 50(e)(4), to be limited to streets, highways, bridges, culverts, sidewalks, or crosswalks . Thus, a town could not extendthe reach of prior notice requirements to a “paddleball court”, since it did not fit within theenumerated categories under the statute. Here are some of the ways to evaluate a claim ifprior written notice does not exist.

             i.           The Demise of the Blake Rule

                         There was a time when Blake v. City of Albany , 63 A.D.2d 1075, 405N.Y.S.2d 832 (3d Dep't 1978), aff'd , 48 N.Y.2d 875, 424 N.Y.S.2d 358 (1979), helped toovercome lack of prior notice. The Appellate Division, Third Department held that priorwritten notice under the applicable statute was not needed because the City's employeesroutinely inspected the area and did work in the area. Thus, the City would have knowledgeof the defect. The Court of Appeals in Amabile v. City of Buffalo , 93 N.Y.2d 471, 693N.Y.S.2d 77 (1999), has held that this exception is not viable, eliminating what seemed to bea logical way around the requirement of prior written notice. See also , Laing v. City of NewYork , 71 N.Y.2d 912, 528 N.Y.S.2d 530 (1988) (where tree inspection reports by City ParksDepartment were designed to assist in tree pruning and not sidewalk repairs, the fact thatreport listed a cracked sidewalk caused by tree root was not sufficient to go outside of theprior notice requirement of the Pothole Law); Caliendo v. Spero , 156 A.D.2d 532, 549N.Y.S.2d 45 (2d Dep't 1989) appeal denied, 75 N.Y.2d 709, 555 N.Y.S.2d 691 (1990)(where City did not have prior written notice that railway tracks in the roadway created adefect, and where last repair work was two years before, the Court dismissed claim).

             ii.          The Special Use Rule

                         As discussed previously, one of the most important decisions in the area ofmunicipal liability is D'Ambrosio v. City of New York , 55 N.Y.2d 454, 450 N.Y.S.2d 149(1982). The Court of Appeals held that a private landowner and a municipality must shareresponsibility for a special use or benefit of the property or condition. A water shut off valvewhich controlled the flow of water from the City water main to the private premises causedplaintiff to trip and fall. Under the old interpretation of the common law of indemnity, themunicipality was allowed to shift responsibility completely to the private owner and avoidany liability. Under D'Ambrosio , both the owner and the City can be held responsible. Thus, while the private owner is not normally responsible for defects in areas adjoining itsproperty, where there is a defect arising out of its “special use”, liability may ensue. Thelitigant may avoid prior written notice statutes entirely, and establish its case against theproperty owner or “special user” by constructive notice of the defect.

             In D’Ambrosio , the “special use” was described as follows by the Court of Appeals:

“Plaintiff sustained injuries when she was caused to tripon a metal disk embedded in the sidewalk. The disk, raised about on inch above the sidewalk , covered thehousing for a shut off valve in the service pipe whichbrought water . . . The curb valve was installed by aformer owner of the abutting premises, presumably forthe benefit of his property.”

Moreover, the Court of Appeals held that the owner’s duty to maintain included the areaimmediately adjacent to the special use . The Court specifically noted that “ the conditionimmediately surrounding the condition was described as cracked and sloping downwardtoward the disk ”. 55 N.Y.2d at 458, 450 N.Y.S.2d at 150. Moreover, the claim against theowner was the failure to repair that condition . Thus, D’Ambrosio clearly mandates that theprivate owner maintain not just the physical portion of the special use, but also the areaimmediately surrounding it.

             In Santorelli v. City of New York , 77 A.D.2d 825, 430 N.Y.S.2d 618 (1 ^st Dep’t 1980),the Appellate Division, First Department held that the duty to maintain extended to thecracked, broken and depressed area of the sidewalk surrounding the special use. In Santorelli , the special use was an oil filler cap. The Court described the defect as follows:

“ [T]he sidewalk immediately surrounding the cap wascracked, broken and depressed by consequence of whichthe filler cap jutted some two inches or more above thesurrounding sidewalk.” 430 N.Y.S.2d at 619.

             The Court set forth the owner’s duty as it related to the special use. It rejected thedefendant’s contention that there was no duty, since there was no proof that it had installedthe oil filler cap. The Court reasoned:

“ This, of course, overlooks the fact that there is no right of special use of the sidewalk. Permission to create thespecial use, whether installed by the special user orsomeone else carries with it the duty to maintain it so asnot to subject others to the peril of injury. Whetherproperly or improperly constructed in the first place is nothere the question. The ‘duty of inspection and repaircontinued while [the owner] owned and was in exclusivepossession of the premises. The duty ran with the land aslong as the [special use] was maintained for the benefit ofthe land.’” 430 N.Y.S.2d at 619. (Emphasis added.)

Moreover, the Court held that the duty to repair the area was a question of fact for the jury . 430 N.Y.S.2d at 619.

             In Weiser v. City of New York , 5 A.D.2d 702, 169 N.Y.S.2d 609 (2d Dep’t 1957), aff’d , 7 N.Y.2d 811, 196 N.Y.S.2d 693 (1959), the party with the “special use” was the Cityof New York itself. The plaintiff claimed that the accident occurred when he tripped in ahole or break in the cement sidewalk around the area of a surveyor monument. TheAppellate Division held that the City owed a common law duty to maintain the area aroundthe special use. It stated:

“ [A]s respects the surveyor’s monument, the City wasitself making a special use, within the driveway portion ofthe sidewalk of the very part where the accidenthappened. As such special user, the duty rested upon theCity to repair the hole or break in the cement, adjacent tothe monument , at the site of the accident.” 169 N.Y.S.2dat 611. (Emphasis added.)

The Court of Appeals unanimously affirmed the Appellate Division ruling.

             See also , Parros v. Assad , 212 A.D.2d 520, 622 N.Y.S.2d 298 (2d Dep’t 1995) (dutyto maintain vault which caused sidewalk to collapse); DeSessa v. City of White Plains , 219N.Y.S.2d 190 (Sup. Ct. Westchester County 1961) (owner of store owed duty to repair areaof sidewalk around special use which was broken); Roselli v. City of New York , 201 A.D.2d417, 607 N.Y.S.2d 672 (1 ^st Dep’t 1994) (duty to repair extends to the broken area ofsidewalk adjacent to the frame of a metal sidewalk grate); Schectman v. Lappin , 161 A.D.2d118, 554 N.Y.S.2d 846 (1 ^st Dep’t 1990) (duty to repair extends to hole in sidewalk abuttingoil filler cap which was ½ inch above the surrounding area); Munnich v. Bellmore DogGrooming , 201 A.D.2d 631, 608 N.Y.S.2d 270 (2d Dep’t 1994) (difference in elevation inareas used by owner required repair).

             An expert witness is not required (although one may be helpful these days) toestablish liability against the owner. See , Roselli v. City of New York , 201 A.D.2d 417, 607N.Y.S.2d 672 (1 ^st Dep’t 1994) (metal grate with broken area of sidewalk around it: noexpert to establish liability of owner of special use); DeSessa v. City of White Plains , 219N.Y.S.2d 190 (Sup. Ct. Westchester Cty. 1961) (defective sidewalk around water drain andgrating: no expert needed to show liability against owner of special use).

             Consider also that if the owners claim to have no control over the area, evidence ofsubsequent remedial measures is admissible on the issues of ownership and control (but notnegligence). See , Schectman v. Lappin , 161 A.D.2d 118, 554 N.Y.S.2d 896 (1 ^st Dep’t 1990).

When seeking a claim based on a special use theory, constructive notice of the defectmay be demonstrated by the photographs of the condition. See, Batton v. Elghanayan , 43N.Y.2d 898, 403 N.Y.S.2d 717 (1978) (discoloration of condition shown in the photographsof the basement sufficient to establish constructive notice); Blake v. City of Albany , 63A.D.2d 1075, 405 N.Y.S.2d 832 (3d Dep't 1978), aff'd 48 N.Y.2d 875, 424 N.Y.S.2d 358(1979) (constructive notice may be inferred from photographs of sunken catch basin); Hernandez v. City of New York , 194 A.D.2d 377, 598 N.Y.S.2d 499 (1st Dep't 1993)(constructive notice of defective fence may be inferred from photographs which showedextensive rust and missing bricks).

             Some of the special uses to be aware of are as follows:

                           1.          Street vaults for delivery of items to the basement. See , Parros v.Assad , 212 A.D.2d 520, 622 N.Y.S.2d 298 (2d Dep’t 1995);

                           2.          Gas, water and other valves for utility service. See, Meltzer v. City ofNew York , 156 A.D.2d 124, 548 N.Y.S.2d 26 (1st Dep't 1989) (gas valve was utility specialuse of owner and not City's; no prior notice of valve requires dismissal of City). Schectmanv. Lappin , 161 A.D.2d 118, 554 N.Y.S.2d 846 (2d Dep’t 1990); Santarelli v. City of NewYork , 77 A.D.2d 825, 430 N.Y.S.2d 618 (1 ^st Dep’t 1980);

                          3.           Driveways. See , Rosario v. City of New York , 289 A.D.2d 133, 735N.Y.S.2d 50 (1 ^st Dep’t 2001);

                          4.           Bus stops owned, operated or maintained by the New York CityTransit Authority, MABSTOA or a private company;

                          5.           Subway grates. See , Roselli v. City of New York , 201 A.D.2d 417,607 N.Y.S.2d 672 (1 ^st Dep’t 1994). Since these are "special uses" of the Transit Authorityfor the ventilation system of the subways, constructive notice is all that is needed for defectsin and around the grates. A note of caution, however, for protruding sign posts which areoften attached by the City to the subway grates and broken off, leaving a tripping hazard, asthese are not considered "special uses" by the City. See, Bisulco v. City of New York , 186A.D.2d 84, 588 N.Y.S.2d 26 (1st Dep't 1992) (parking sign not a special use of City;improper removal valid basis for liability); Poirier v. City of Schenectady , 85 N.Y.2d 310,624 N.Y.S.2d 555 (1995) aff’g , 201 A.D.2d 845, 607 N.Y.S.2d 986 (3d Dep't 1994) (signpost not a "special use", lack of prior notice of broken post requires dismissal). So, whenseeking to hold the municipality liable under a special use theory, look to the ownershipfunction of the municipality, as opposed to governmental operation for the public good;

                         6           Ornamental sidewalks. Where the owner decides to install asidewalk different than the regular concrete flags, this may constitute a special use and also acause and create situation;

                         7           Canopies installed over the sidewalk;

                         8           Other obstructions in the sidewalk or roadway including coal chutes(normally abandoned at this time), manholes and drain pipes; and

                         9           Tree wells and planters.

             There are loads of cases discussing “special uses”. Rule of thumb for knowing onewhen you see it: If someone is using the sidewalk for personal convenience , chances are it’sa “special use”. See, e.g. , Munnich v. Bellmore Dog Grooming , 201 A.D.2d 631, 608N.Y.S.2d 270 (2d Dep’t 1994) (difference in elevation in areas used by owner).

             You should be aware of some cases which hold -- mistakenly, I suggest since itmerges “special use” with “cause and create” principles of liability -- that the special usemust actually create the defect to impose liability on the special user. See, e.g. , Benerati v.City of New York , 282 A.D.2d 418, 732 N.Y.S.2d 69 (2d Dep’t 2001) (driveway wheredefect was located); Moschillo v. City of New York , 290 A.D.2d 260, 736 N.Y.S.2d 26 (1 ^st Dep’t 2002) (sidewalk used as driveway); Kaminer v. Dan’s Supreme Supermarket , 253A.D.2d 657, 677 N.Y.S.2d 553 (1 ^st Dep’t 1998) (occasional use of sidewalk on side ofstore); Higginbottom v. City of New York , 2003 NY Slip Op. 50009U (App. Term, 1 ^st Dep’tJanuary 2, 2003) (no proof defect “created” by lessee’s special use as driveway); Ivanyushkina v. City of New York , ____ A.D.2d ____, 752 N.Y.S.2d 693 (2d Dep’t 2002)(driveway); Breger v. City of New York , 297 A.D.2d 770, 747 N.Y.S.2d 577 (2d Dep’t2002).

             Consider, however, whether these holdings are supported by the “special use” line ofreasoning. D’Ambrosio involved an “appurtenance” installed for the benefit of thelandowner, since the shut off valve provided the owner with a means to control the waterflowing into the building from the water main in the street. The valve was installed by a prior owner. The valve was raised apparently “one-inch” above the sidewalk. The Courtstated:

“ When a sidewalk appurtenance negligently falls intodisrepair, both the municipality and the landowner havebreached their respective duties to members of the public ,and both may be made to respond in damages to thoseinjured by the defective condition. If the municipalitypays the damages, it is not being compelled to pay for thewrong of another; it is simply being held liable for itsown failure to exercise reasonable care. The landowner’sobligation to maintain the sidewalk appurtenance runs,not to the municipality, but to the pedestrians who mightbe harmed by his negligence. The landowner has notundertaken any obligation to repair for the benefit of themunicipality.” 55 N.Y.2d at 463, 450 N.Y.S.2d at 153. (Emphasis added.)

             Consider also the dissent in the language in D’Ambrosio , which outlines the dutythat is imposed once the property owner creates a “special use” (although it disagrees withthe sharing effect of the majority decision):

“ The implied duty assumed when a special benefitappurtenance is installed covers not only properconstruction in the first instance but reasonable care in itsmaintenance . ( Trustees of Vil. of Canandaigua v. Foster ,156 N.Y. 354, 360, 50 N.E. 971; see Babbage v. Powers ,130 N.Y. 281, 286, 29 N.E. 132). It is moreover animplied duty which, as we declared in Canandaigua,supra , at pp. 361-362, 50 N.E.. 971, ‘requires reasonableprecaution on the part of the owner to protect the publicas long as he remains the owner and is in possession ofany part of the building on the abutting land. He cannotcast the burden of maintenance on the public any morethan he could have cast upon them the burden of originalconstruction, for the grate is wholly for the benefit of hisproperty. Nor can he relieve himself of the duty withoutparting with the entire possession of the propertybenefited , for the safety of the public requires that theowner, as long as he is in possession of any part of theproperty, should be compelled to keep his structure in thesidewalk in suitable condition for use as a part of thesidewalk .” 55 N.Y.2d at 467, 450 N.Y.S.2d at 155. (Emphasis added.)

Thus, the dissent clearly envisions a duty to maintain the special use if it falls into disrepair.

             It further states:

“ Ordinarily, a property owner is not responsible for themaintenance of the sidewalk or street abutting his property(Ann., 88 A.L.R.2d 331), and is not liable either to oneinjured by its disrepair or to indemnify the municipalityabsent a statute which not only requires that he maintainthe sidewalk or highway but speaks expressly to injuryresulting from disrepair (compare Willis v. Parker , 225N.Y. 159, 121 N.E. 810, with City of Rochester v.Campbell , 123 N.Y. 405, 25 N.E. 937, and Russell v.Village of Canastota , 98 N.Y. 496; and see Village ofFulton v. Tucker , 3 Hun. 529). But when the sidewalkincludes an appurtenance for the special benefit of hisproperty , the municipality is entitled to rely, as between theowner and itself though not as to an injured third party,upon performance by the owner of his obligation tomaintain the appurtenance in safe condition , just as muchas the municipality would be entitled to rely upon, andtherefore has the right to be indemnified by, one who hasvoluntarily assumed the duty of maintenance . . . “ 55N.Y.2d at 468, 450 N.Y.S.2d at 56. (Emphasis added,citations omitted.)

             There are other cases which discuss the basis for the special duty rule, and do notrequire that the special use cause the defect. Rather, the special use itself creates a duty tomaintain and repair the sidewalk. Otherwise, why distinguish a “special use” basis forliability from that involving liability under the “cause and create” line of cases? See , Kaufman v. Silver , 90 N.Y.2d 204, 659 N.Y.S.2d 250 (1997) (abutting owner is “ required tomaintain ” the public area where special benefit derived from its use); Poirier v. City ofSchenectady , 85 N.Y.2d 310, 624 N.Y.S.2d 555 (1995) ( protruding sign post not a specialuse of municipality since its installation arises out of its general duty to create safe streets,and creates no special benefit on municipality, but notes:

1. “The special use exception is reserved for situationswhere a landowner whose property abuts a public streetor sidewalk derives a special benefit from that propertyunrelated to the public use, and is therefore required tomaintain a portion of that property ( see, Kiernan v.Thompson , 137 A.D.2d 957, 525 N.Y.S.2d 380).” 85N.Y.2d at 315, 624 N.Y.S.2d at 557-558.

2. “Further, plaintiffs failed to show that defendant created the obstructed condition by an affirmative act ofnegligence, another recognized exception , as to renderthe Charter’s prior notice provision inapplicable ( see,Buccellato v. County of Nassau , 158 A.D.2d 440, 441,550 N.Y.S.2d 9906, lv. denied 76 N.Y.2d 703, 559N.Y.S.2d 982, 559 N.E.2d 676; Haviland v. Smith , 91A.D.2d 764, 765, 458 N.Y.S.2d 11; see also , Hughes v.Jahoda , 75 N.Y.2d at 883, 554 N.Y.S.2d 467, 553N.E.2d 1015, supra ).” 85 N.Y.2d at 315, 624 N.Y. at558. (Emphasis added.)

Thus, the Court clearly makes -- correctly -- the distinction between the two legal theories. See , Hausser v. Giunta , 88 N.Y.2d 449, 646 N.Y.S.2d 490 (1996) (court outlines four distinct bases for holding property owner liable for sidewalk defect: (1) Special use; (2) Cause and create; (3) Local ordinance; (4) Negligent repair); Kiernan v. Thompson , 437A.D.2d 960, 525 N.Y.S.2d 382 (3d Dep’t 1988) (special use imposes duty to maintain); Colson v. Joseph E. Wood Realty Co., Inc. , 39 A.D.2d 511, 337 N.Y.S.2d 487 (3d Dep’t1972) (court recognizes distinction between cause and create and special use). Compare the“special use” cases with the “cause and create” cases under Kiernan v. Thompson , infra .

             iii.         " Dig We Must" -- The Created Condition Rule

             a.           In Kiernan v. Thompson, 73 N.Y.2d 840, 537 N.Y.S.2d 122 (1988), theCourt of Appeals held that where the municipality caused or created the condition, givingrise to the defect, prior notice in writing was not necessary. There, the plaintiff stated aclaim where the City negligently removed a tree stump years before the accident.

             See also , Combs v. Incorporated Village of Freeport , 139 A.D.2d 688, 527 N.Y.S.2d443 (2d Dep't 1988) (where the defective condition was created by an independentcontractor hired by the municipality, prior notice to the municipality was not required); Bisulco v. City of New York , 186 A.D.2d 84, 588 N.Y.S.2d 26 (1st Dep't 1992) (prior noticenot required where City created condition by removing sign but left post); Kelly v. City ofNew York , 172 A.D.2d 350, 568 N.Y.S.2d 744 (1st Dep't 1991) (case where the contractorwas found not negligent by the jury and City did not do any work, prior notice applies formere nonfeasance of the City even though inspector was assigned to perform on site qualitycontrol). Question arises as to Hughes v. Jahoda , 75 N.Y.2d 881, 554 N.Y.S.2d 467 (1990)(where town participated in negligent design of pole without guard or barricade, prior noticenot required since town "aware" of condition when constructed roadway with negligentdesign), and the Blake rule. But see, Zinno v. City of New York , 160 A.D.2d 795, 554N.Y.S.2d 66 (2d Dep't 1990) , appeal denied, 76 N.Y.2d 708, 560 N.Y.S.2d 990 (no proofCity affirmatively created defect involving sidewalk grating despite expert testimony thatgrating was improperly placed during cleaning).

                         b.           Street and sidewalk repairs frequently done either by the City itself orby contractors or utility companies are the most notable examples of the "cause and create"basis for liability. The real challenge in these cases, of course, is getting the records of theparties responsible for doing the work. Unfortunately, most of these records are held, if atall, within the municipal agency. And, even though the records may absolve themunicipality of any liability, they rarely provide it without much effort, and usually alawsuit.

             One important area to note in these cases is the placement of metal plates. Often theplates are marked by the contractor or agency doing the work and appropriate investigationshould take account of the welded initials on the plates.

             In addition, for appropriate street repairs, utility companies regularly working withinthe City of New York have now resorted to placing yellow markers in their street openings. Care should be taken to recognize these markers as to an identifying symbol for the partydoing the work. For example, "EO1" means Con Edison did a repair in 2001. "ECS4"refers to a repair in 1994 by Empire City Subway.

C.          WHO DO YOU SUE ?

             a.           The Municipality

             In most cases, the municipality is the owner of the sidewalks, curbs and streets. As aresult, it has a non-delegable duty to maintain the public ways. See, PJI 2:225. But, if youuse PJI 2:225 for a case where prior written notice is required, make sure you delete thereference to actual or constructive notice.

In Quinn v. City of New York , ___ A.D.2d ___, 761 N.Y.S.2d 231 (2d Dep’t 2003),the plaintiff tripped and fell on the sidewalk and relied upon a Big Apple map to establishprior written notice of the defect. The City had argued that the particular defect that causedthe fall was not present in the location depicted on the map. However, the Court held that,where there are “factual issues regarding the precise location of the defect that allegedlycaused the plaintiff’s fall, and whether the alleged defect is designated on the map, thequestion should be resolved by a jury”. Since there was conflicting testimony as to whetherthe defect marked on the map, which was noted to be a “raised portion of the sidewalk”,corresponded with the defect described by the plaintiff, that factual issues had to be left tothe jury to resolve. The Court, however, reversed the verdict in favor of the plaintiff, sincethe Court improperly charged PJI 2:225, which discusses the City’s responsibility tomaintain sidewalks. Since that charge includes a charge of constructive notice , the Courtheld that it is improper to charge it to the jury, since only prior written notice would satisfythe notice requirements under the City’s notice laws. Constructive notice of a sidewalkdefect is not an exception to the requirement of prior written notice to the municipality.

Accordingly, unless a defect is clearly identified as a created condition of a privateentity, the City must be joined as a party.

             Of course, many of the claims that are brought against the City could be avoided ifready access to the records establishing the work were made available. Unfortunately, theprocedures for obtaining records from the City agencies are either non-existent, or at best,time consuming and burdensome. Thus, many a case must be brought with the City as aparty simply to obtain access to the public records. Until the position of the municipalitychanges in terms of providing ready access to records and identifying the names ofcontractors or other parties performing the work, there is no alternative. This is unfortunatesince there are many cases where policies of insurance were taken out under a contract forthe benefit of the municipality. The municipality would not only be indemnified for thedamages, but also be entitled to legal counsel as a matter of right, thereby lessening theburden on the in-house municipal counsel. Perhaps the municipality can be enticed toturning over records by suggesting a claim for coverage by it against the contractor under Kinney v. G.W. Lisk Co. Inc. , 76 N.Y.2d 215, 557 N.Y.S.2d 283 (1990). That case holdsthat where a contract is let out and the parties agree that the contractor will purchaseinsurance, the failure to purchase the insurance is a breach of contract entitling the offendedparty to counsel fees and indemnification.

             b.          Adjoining owners

             Again, as alluded to above, generally (the City of New York has a new sidewalk lawthat changes this in a material way), the owner which abuts the sidewalk or roadway has noduty to maintain or repair the public ways. However, if it can be demonstrated that theowner by some affirmative act, undertook a duty, see , Botfeld v. City of New York , 162A.D.2d 652, 557 N.Y.S.2d 98 (2d Dep't 1990) (testimony that owner hired contractor torepair defects in public sidewalk), or, as discussed above, had some special use whichcaused the accident, see , Bucalo v. City of New York , 189 A.D.2d 656, 592 N.Y.S.2d 328(1st Dep't 1993) (exclusive use of sidewalk area by hotel created duty to maintain as "specialuse"), or caused the condition, Jimenez v. City of New York , 179 A.D.2d 396, 577 N.Y.S.2d846 (1st Dep't 1992) (testimony showed repairs by adjoining owner), then a claim should bebrought against the adjoining owner as well. Again, care should be taken in the early stagesof the investigation to photograph and identify the uses and potential affirmative acts by theowner which may give rise to liability. For example, voluntary repairs of the sidewalkswhich are done improperly would be the affirmative undertaking necessary to join the ownerinto the lawsuit. And, it should be remembered that the municipality may be an additionalparty if the factual circumstances warrant it. Thus, if the municipality independentlyobtained prior notice, it should be joined as a party in addition to the owner whichaffirmatively undertook a duty or had a special use for its benefit.

             Increasingly, it has become necessary to obtain the services of an engineer orsuitable expert to explain how the defect was created. Early preparation is key.

             In addition, there are several sources of information which can provide a statutoryviolation for the work that was performed. These violations, if shown, are particularlycompelling before a jury. The code provisions of each governmental subdivision should bechecked in that regard. The following are appropriate for cases involving the City of NewYork or contractors doing work within the City of New York:

                         (a)         The Building Code of the City of New York . The code provisions inthe Building Code outline the care that must be taken during construction projects. It isspecific in terms of providing safe passageway to pedestrians in and about constructionlocations.

                         (b)         The New York City Department of Transportation Rules andRegulations . These provisions are set forth in Volume 11 of the Rules of the City of NewYork. The Highway Operations section sets out specific requirements in terms of defectsand repairs of sidewalks and roadways. It also identifies many types of “special uses” andthe duties imposed on the user to maintain them . (See, e.g., Section 2-13(m)(3), streetvaults and grates, “shall be flush with the sidewalk”.)These rules and regulations and, inparticular, Section 2-09, suggest that the City has a different approach to cases in which itclaims “trivial defects” and its own attempt to assert a violation against property owners. They also set out specific housekeeping requirements for sidewalk and street repairs.

                         (c)         Hare V. City Of New York And The 12 Inch Bulge . A significantdecision to be aware of is Hare v. City of New York , 183 A.D.2d 682, 584 N.Y.S.2d 63 (1stDep't 1992), leave to appeal denied, 80 N.Y.2d 758, 589 N.Y.S.2d 309. Hare involved aplaintiff who tripped in the area of a manhole which was installed and owned by ConEdison. The Court held not only that the manhole was a "special use", but also that the NewYork City Rules and Regulations of the Department of Transportation was properlyinstructed to the jury. That section is now numbered §2-07(b) and provides as follows:

"(b) Maintenance requirements.

(1) The owners of covers or gratings on a street areresponsible for monitoring the condition of the covers andgratings and the area extending twelve inches outwardfrom the perimeter of the hardware

-2         The owners of covers and gratings shall replace orrepair any cover or grating found to be defective and shallrepair any defective street condition found within an areaextending twelve inches outward from the perimeter of thecover or grating.

(3) Street hardware shall be flush with the surroundingstreet surface. Street hardware which is greater than ½”above or below the street surface . . . shall be replaced oradjusted . . . .”

             The Court in Hare held that the jury should be instructed with regard to thatprovision in terms of the utility's responsibility to maintain the area. Thus, the plaintiffenjoys the benefit of a 12 inch bulge surrounding the manhole. Often there are potholes,which are not within the scope of any notice to the City, adjoining a manhole or grating. The Court holds that responsibility for repairing defects in the twelve inch area surroundingthe hardware rests with the utility which maintains or owns the manhole.

             The interesting question in Hare is whether a manhole owned by the City of NewYork would nonetheless require prior written notice. See , Kiernan , supra .

                         (d)         Constructive Notice . The significance of the above is thatconstructive notice is all that is required to be shown. If the defect is a "cause and create", itfalls within the ambit of actual notice, and has, in any event, a very strong impact on a jury. However, in many instances, a defect exists in and around manholes or in and aroundconstruction work which has deteriorated over time. Constructive notice of that conditionmay be all that is available -- and needed. The defects are usually of such a nature thatconstructive notice can be easily demonstrated. Again, take photographs!

D.          TRIVIAL DEFECTS

             Often you will be met with a defense that the defect is “trivial”, that is, a defect soinsignificant that a reasonable landowner can reasonably decide not to repair it and leave italone. In Trincere v, County of Suffolk , 90 N.Y.2d 976, 665 N.Y.S.2d 615 (1997), the Courtof Appeals reiterated the “rule” that there is no specific “minimal dimension” standard thatcharacterizes a defect as “trivial”, and rejected a “mechanistic disposition of a case basedexclusively on the dimension of a sidewalk”. 90 N.Y.2d at 977-978, 665 N.Y.S.2d at 616. The Court instead suggested that the determination will depend on all pertinent factors,“including the width, depth, elevation, irregularity and appearance of the defect”, togetherwith the time, place and circumstance of the accident. 90 N.Y.2d at 978, 665 N.Y.S.2d at616. Usually, that will be a fact question for the jury. Yet, despite holding that there is nohard and fast rule, the Court also noted that not every defect has to be submitted to the jury. It then proceeded to affirm the Appellate Court’s determination that a one-half inchdifferential in adjoining flagstones was, as a matter of law, too trivial for submission to thejury and warranted dismissal of the claim.

             The result of Trincere is that there are cases dealing with every shape and size ofdefect and a factual inquiry on each. Perhaps, the City’s own standard -- which it refuses toacknowledge as a “standard” at trial -- sheds some light on what a “substantial defect” is:

“ -5 Substantial defects . Any of the following conditionsshall be considered a substantial defect.

             (i)          One or more flags missing or sidewalknever built.

             (ii)         One or more flag(s) cracked to such anextent that one or more pieces of the flag(s) may beloosened or readily removed.

             (iii)        An undermined flag below which there isa visible void or a loose flag that rocks or seesaws.

             (iv)        A trip hazard where the verticaldifferential between adjacent flags is greater than or equalto ½” or where a flag contains one or more surfacedefects of one inch or greater in all horizontal directionsand is ½” or more in depth.

             (v)         Improper slope, which shall mean (i) aflag that does not drain toward the curb and retains water,(ii) flag(s) that shall be replaced to provide for adequatedrainage or (iii) a cross slope exceeding establishedstandards.

             (vi)        Hardware defects , which shall mean (i)hardware or other appurtenances not flush within ½” ofthe sidewalk surface or (ii) cellar doors that defect greaterthan 1” when walked on, are not skid resistant or areotherwise in a dangerous or unsafe condition.

             (vii)       A defect involving structural integrity,which shall mean a flag that has a common joint, which isnot an expansion joint with a defective flag and has acrack that meets the common joint and one other joint.

             (viii)      Non-compliance with Departmentspecifications for sidewalk construction.

             (ix)        Patchwork, which shall mean (i) less thanfull-depth repairs to all or part of the surface area ofbroken, cracked or chipped flag(s) or (ii) flag(s) partiallyor wholly constructed with asphalt or other unapprovednon-concrete material; except that patchwork resultingfrom the installation of canopy poles, meters, light poles,signs and bus stop shelters shall not be subject to thisprovision unless the patchwork constitutes a substantialdefect as set forth in subparagraphs (i) through (viii) ofthis paragraph.” Section 2-09, Rules and Regulations,Department of Transportation of the City of New York.

The City will strongly object to any request to charge this section to the jury, evenfor the limited purpose of defining a “substantial defect”. Regardless of the City’s position,the trial court may view your defect a little less harshly when shown these provisions.

And, if this section of the City’s own rules fails to impress the Court, D’Ambrosio isa great case for another reason: the shut off valve was one-inch above the sidewalk -- andwas clearly not a trivial defect. Consider, however, that expert testimony was used there toestablish that the one-inch elevation was improper and that valves should be maintained flush with the sidewalk.

Here’s a whole bunch more to consider:

                         Adsmond v. City of Poughkeepsie , 283 A.D.2d 598, 725 N.Y.S.2d 80 (2dDep’t 2001). The Appellate Division reversed the dismissal of the complaint where plaintifffell on a crack which was 9 inches long, 5-1/2 inches side, and 2 inches deep. The SupremeCourt had held that it was a “trivial non-actionable defect”. The Appellate Divisionreviewed the photographs of the crack, attached to the moving papers, and concluded thatthose photographs demonstrated sufficient issues of fact as to whether the “crack constituteda dangerous condition, and whether the injured plaintiff’s own conduct in failing to avoid anopen and obvious defect” contributed. The Court determined that such were matters for juryresolution.

                         Santulli v. City of New York , 287 A.D.2d 352, 731 N.Y.S.2d 173 (1 ^st Dep’t2001). Plaintiff tripped and fell in front of a building owned by one of the defendants. TheAppellate Division held that summary judgment was inappropriate where the distinctivelydesigned sidewalk contained expansion joints, which caused the plaintiff’s heel to get stuck. The expansion joints created a 1-1/2” depression caused by missing joint filler. The Courtnoted, “we cannot say, as appellant urges, that the alleged depression was trivial as a matterof law, or that no issue of fact exists as to whether it was open and obvious”.

                         Vachon v. State of New York , 286 A.D.2d 528, 729 N.Y.S.2d 212 (3 ^rd Dep’t2001). Plaintiff was injured when she tripped and fell over a differential in rectangulargranite slabs that formed a landing above a stairway. The differential ranged from one toone and a half inches in height. The Court of Claims granted the State’s motion for adirected verdict at the conclusion of the trial and dismissed the complaint. The AppellateDivision affirmed. It held that the height differential between the granite slabs on thelanding of the portico was “trivial” and that it could not, as a matter of law, constitute a trapor a nuisance, even though the uneven slabs may cause a pedestrian to “stumble, stub his toe,or trip over a raised projection.” There was conflicting expert testimony with regard to theseverity of the height differential, and whether it constituted a tripping hazard. There wasalso a conflict between the experts regarding the need for a second handrail. The AppellateCourt rejected the claim that a second handrail would have made a difference, noting thelack of proof by the plaintiff that she would have prevented her fall if such a railing waspresent. It should be noted also that there was conflicting testimony offered by the plaintiff. A police officer testified that plaintiff never said that she tripped, but only that she had losther balance. Testimony was also offered that there were no other accidents on that particularstairway. The critical factor in this case was that the granite slabs were set in place between1870 and 1875, and have remained in that position for over 100 years before the happeningof this single accident.

                         In Grover v. State of New York , 294 A.D.2d 690, 742 N.Y.S.2d 413 (3dDep’t 2002), the claimant tripped over a two-inch hump or ridge while walking across astate route under construction. The Court of Claims found that the rutting condition whichcaused the hump had been present for a considerable period of time, and that the differencein elevation in the roadway was not a dangerous condition sufficient to establish negligenceagainst the State. The Appellate Division affirmed the decision of the Court of Claims, andheld that while there is no minimal dimension test or per se rule that a defect must be acertain minimum height or depth in order to be actionable, this defect was trivial and notactionable.

             See also , Tineo v. Parkchester South Condominium , 2003 NY Slip Op. 12976 (1 ^st Dep’t April 10, 2003) (3/4 inch depression which was 2 feet long by 2 feet wide describedby expert as a tripping hazard; Court holds “no minimal dimension” test, and that this defectnot trivial as a matter of law); Gerber v. West Hempstead Convenience, Inc. , 2003 NY SlipOp. 11825 (1 ^st Dep’t March 11, 2003) (missing tile not trivial); Menendez v. Dobra , 2003NY Slip Op. 10383 (1 ^st Dep’t January 23, 2003) ( no evidence that defect, which was gentleand shallow, constituted “trap or snare”; complaint dismissed); Glickman v. City of NewYork , 297 A.D.2d 220, 746 N.Y.S.2d 24 (1 ^st Dep’t 2002) (shallow depression or “dip” inparking lot, even though trivial , posed a hazard based on expert testimony that it wasdifficult to see); Thomas v. City of New York , 301 A.D.2d 387, 753 N.Y.S.2d 468 (1 ^st Dep’t2003) (metal grating “barely raised” trivial and not actionable); Sanna v. Wal-Mart Stores,Inc. , 271 A.D.2d 595, 706 N.Y.S.2d 156 (2d Dep’t 2000) (one-half inch deep defect causedby area of missing carpet not trivial because of poor lighting and color of carpet); Vachon v.State of New York , 286 A.D.2d 528, 729 N.Y.S.2d 212 (3d Dep’t 2001) (slight elevation ofgranite slabs on stairs which created about 1/8” differential were trivial ; however, Court alsofound that the trivial defect was also “open and obvious”?); Ramee v. WeathervaneSeafoods , 273 A.D.2d 768, 710 N.Y.S.2d 165 (3d Dep’t 2000) (“depression” formed bysunken single brick, not trivial); Adamapoulos v. Liotti , 273 A.D.2d 260, 708 N.Y.S.2d 706(2d Dep’t 2000) (“hole” of installed dimensions not trivial where heel of shoe got “caught”,causing fall); Denmark v. Wal-Mart Stores, Inc. , 266 A.D.2d 776, 699 N.Y.S.2d 499 (3dDep’t 1999) (depression not trivial, even though described as between one-half inch and 1 ¾to 2 inches deep); Feneck v. First Union Real Estate Equity and Mortgage Investments , 266A.D.2d 916, 697 N.Y.S.2d 442 (4 ^th Dep’t 1999) (“uneven doorway surface” at entrance tomall not trivial); Palminteri v. Massapequa Shopping Associates , 264 A.D.2d 412, 693N.Y.S.2d 444 (2d Dep’t 1999) (“small hole” not trivial); Herrera v. City of New York , 262A.D.2d 120, 691 N.Y.S.2d 504 (1 ^st Dep’t 1999) (differential of ¾ of an inch not trivial); Gutierrez v. Riverbay Corp. , 262 A.D.2d 64, 691 N.Y.S.2d 452 (1 ^st Dep’t 1999) (2 inchdepression in walkway not trivial); Nin v. Bernard , 257 A.D.2d 417, 683 N.Y.S.2d 237 (1 ^st Dep’t 1999) (irregular depression less than one inch deep not trivial); Tesak v. MarineMidland Bank N.A. , 254 A.D.2d 717, 678 N.Y.S.2d 226 (4 ^th Dep’t 1998) (difference of lessthan one inch near entry to bank, not trivial); Feldman v. Kings Hero Restaurant , 270A.D.2d 1, 703 N.Y.S.2d 476 (1 ^st Dep’t 2000) (sidewalk defect with no measurements , wasnot minimal given review of photographs and description of accident); Leverton v. PetersGroceries, Inc. , 267 A.D.2d 1014, 700 N.Y.S.2d 316 (4 ^th Dep’t 1999) (5/8 inch differentialbetween flange and sidewalk, trivial); Santiago v. United Artists Communications, Inc. , 263A.D.2d 407, 693 N.Y.S.2d 44 (1 ^st Dep’t 1999) (depression of ½ inch, which was shallowand gradual, was trivial); Riser v. New York City Housing Authority , 260 A.D.2d 564, 688N.Y.S.2d 645 (2d Dep’t 1999) (portion of pavement raised a few inches in length and atmost one inch in height above adjacent slab was trivial); Schechtman v. Lappin , 161 A.D.2d118, 554 N.Y.S.2d 846 (1 ^st Dep’t 1990) (hole in sidewalk abutting oil filler cap that was ½inch above surrounding area was actionable); Rosano v. City of New York , 289 A.D.2d 133,735 N.Y.S.2d 50 (1 ^st Dep’t 2001) (hole 5 inches wide by 3 to 5 inches deep not trivial); Young v. City of New York , 250 A.D.2d 383, 673 N.Y.S.2d 378 (1 ^st Dep’t 1998) (expansionjoint that was 5/8 inch wide and one inch deep and caused heel to get caught not trivial).

D.          “OPEN AND OBVIOUS” HAZARDS

             Oh, CPLR 1411, where are you when we need you? On September 1, 1975, NewYork adopted the law of “comparative negligence”. A right of recovery was not barredcompletely, but only diminished in proportion to the fault of the injured party. In otherwords, the Legislature had concluded -- LET THE JURY DECIDE.

             Indeed, the legislative history of Section 1411 shows that the legislature consideredand rejected a statute that would bar recovery if the victim was found to have an apportionedfault of greater than 50%. It also recognized that neither contributory negligence nor assumption of risk could survive the statute to deny recovery to the plaintiff. It rejected theentreaties of the insurance industry and business groups that predicted dire consequences ifthe statute was enacted. And, it specifically rejected the continued applicability of thefollowing cases:

                         1           Campo v. Scofield , 301 N.Y. 468 (1958), in which the Courtaddressed a negligence claim against a manufacturing defect. The Court held that there wasno duty to render a machine safe -- “as long as the danger to be avoided is “ obvious andpatent to all”.

                         2           McEvoy v. City of New York , 266 A.D.2d 445, 42 N.Y.S.2d 746 (2dDep’t 1943), in which the Court addressed the assumption of the risk doctrine in a trip andfall case in which the plaintiff was aware of the defective condition for “some time prior” tothe accident, the Court held that such knowledge of the risk and appreciation of the dangersremained a question of fact and that neither contributing negligence nor assumption of therisk barred recovery as a matter of law. See also , McFarlane v. City of Niagara Falls , 247N.Y. 340 (1928); Weigand v. United Traction Company , 221 N.Y. 39 (1917) (duty to seewhat is there to be seen !).

                         More recently, however, we had a flood of cases which held that, as a matterof law , plaintiff cannot recover for an injury caused by a condition that is an “open andobvious” danger. The conflict among the cases was the only thing that was “obvious”, andclearly, the attempt to avoid Section 1411 was the reason.

             The Court of Appeals in Tagle v. Jakob , 97 N.Y.2d 165, 737 N.Y.S.2d 331 (2001),noted that no claim existed where the plaintiff touched high power electrical wire runningacross a backyard where he was visiting. The power cables had been there for years andwere plainly visible. The 16 year old plaintiff climbed a tree 25 feet above the ground andaccidentally touched the wire. After discussing the principles of Basso v. Miller , 40 N.Y.2d233, 386 N.Y.S.2d 564 (1976) (a great case, remember it?), the Court of Appeals affirmedthe dismissal of the claim, noting that it was “unimaginable” that the plaintiff could not seethe wires and fully appreciate its dangers. Remember, this is a 16 year old who went togreat lengths to put himself in harm’s way. But, the Court also noted:

“ We have long held that a landowner has no duty to warnof an open and obvious danger. By contrast, a latenthazard may give rise to a duty to protect entrants fromthat danger. While the issue of whether a hazard is latentor open and obvious is generally fact-specific and thususually a jury question . . . A court may determine that arisk was open and obvious as a matter of law when thefacts compel that conclusion . . . and may do so on thebasis of clear and undisputed evidence . . .” 97 N.Y.2d at169, 737 N.Y.S.2d at 333-34. (Emphasis added; citationsomitted.)

Tagle surely represents an extreme example of an “open and obvious” hazard -- almost anassumption of the risk scenario. But, the cases are in disarray and you must be ready tojustify getting your case to the jury.

             Consider, however, that recently the Appellate Division, Second Department, in Cupo v. Karfunkel , ___ A.D.2d ___, 767 N.Y.S.2d 40 (2d Dep’t 2003), signaled that itwould follow a more liberal review of this defense and leave the factual issue to the jury asan issue of comparative negligence -- in cases where “it can reasonably be argued that adangerous condition existed”. But, consider what has preceded Cupo :

                         Tortorella v. New York City Transit Authority , 291 A.D.2d 445, 737N.Y.S.2d 122 (2d Dep’t 2002). The plaintiff was injured when she tripped over a foldedstroller in the aisle of a Transit Authority bus. The Supreme Court granted summaryjudgment and dismissed the complaint. The Appellate Division reversed the grant ofsummary judgment, and held that triable issues of fact existed, since the bus operator had tohave actual notice of the presence of the stroller in the aisle.

                         Galski v. State of New York , 289 A.D.2d 195, 733 N.Y.S.2d 695 (2d Dep’t2001). Plaintiff was playing golf on a public golf course owned by the defendant state. Hewas injured when his golf cleat was caught in a protrusion in a natural wood step near thegolf cart path. Plaintiff admitted that he was aware of the steps and that the protrusions onthe steps were “fairly obvious”, even though he did not see them on the day of the accident. The Appellate Division affirmed the dismissal of the complaint for failure to state a cause ofaction. It held that a party engaging in a sport or recreational activity accepts those risks thatare inherent in the sport. Among those risks are “any open and obvious conditions of theplace where the sport is played.” The Court thus held that the area where the plaintifftripped was part of the playing field at the golf course and since the plaintiff admitted thatthey were obvious, “they did not constitute a concealed or unreasonably increased risk.” The plaintiff therefore was held to assume the risk of being injured and his complaint failedto state a cause of action.

                         Goldberg v. Town of Hempstead , 289 A.D.2d 198, 733 N.Y.S.2d 691 (2dDep’t 2001). The infant plaintiff was injured when she fell while riding a bicycle on a dirtbase path of a baseball field owned and maintained by the defendant. The AppellateDivision reversed the denial of summary judgment and held that the complaint should havebeen dismissed since “the risk of striking a hole and falling is an inherent risk in riding abicycle on most outdoor surfaces”. The Court further held that “the defective condition inthis case was open and obvious, and thus the infant plaintiff assumed the risk associated withriding her bicycle on the ball field”. Since the defendant’s ball field was “as safe as itappeared to be”, there was no liability against the town for improper maintenance.

                         Robinson v. Albany Housing Authority , 289 A.D.2d 828, 734 N.Y.S.2d 360(3d Dep’t 2001). Plaintiff was injured when she tripped and fell on rocks located within thehousing authority’s property. The rocks were a compilation of debris and a piece ofsidewalk that appeared to have been deposited near the walkway following the renovation ofthe sidewalk. Summary judgment was denied and the Appellate Division affirmed. Thedefendant argued that the hazard posed an open and obvious danger to the plaintiff andtherefore it had no duty to warn of that dangerous condition. The Court rejected theargument that this subject area “was a natural geographical phenomena presenting open andobvious dangers”. The housing authority had argued that the path was an unimproveddrainage area which is not intended to be used as a pedestrian walkway. The Court heldthat the path was in fact an area connected to the well-traveled portion of the horizontalwalkway and was paved with similar material. It was thus to be considered a regularly usedwalkway within the authority’s control and which the authority had to maintain. The Courtrejected any argument that plaintiff had assumed the risk of walking across such an open andobvious hazard.

                         Berfas v. Town of Oyster Bay , 286 A.D.2d 466, 729 N.Y.S.2d 530 (2d Dep’t2001). The plaintiff was injured while riding his bicycle. He struck a rut in the road andwas thrown to the ground. Summary judgment was denied by the Supreme Court. TheAppellate Division affirmed. It rejected the argument that plaintiff assumed the risk ofriding on a roadway that would presumably have a rut adjacent to it. The Court also rejectedthe argument that the condition of the rut in the road was open and obvious. It relied on thephotographs that were submitted in opposition to the motion. It held that issues of fact existwith regard to the condition that caused the accident, since plaintiff did not recall riding inthat area and was unaware of the defect in the road. The Court held that “under theparticular circumstances of this case there are issues of fact as to whether the doctrine ofprimary assumption of the risk is applicable to riding a bicycle on a paved road and whetherthe condition of the road was open and obvious”.

             Here’s a whole bunch more that say it is a fact question:

Michalski v. The Home Depot, Inc. , 225 F.3d 113 (2000) (fall over four foot widepallet in store aisle); Tagliavia v. Trump Castle Associates , 7 Fed. App. 37 (2001) (fall overwalker in aisle); Sanchez v. Toys “R” Us, Inc. , 2003 NY Slip Op. 11604 (March 4, 2003), 1 ^st Dep’t) (fall over three foot by four foot wide rack in store aisle not so “readily observable”); Gaffney v. Port Authority of NY and NJ , 2003 NY Slip Op. 10280 (1 ^st Dep’t January 16,2003) (fall in pothole near ramp used by cars and fenced off raised issue of comparativefault); Stelmack v. Town of Oyster Bay Housing Auth. , 295 A.D.2d 594, 744 N.Y.S.2d 191(2d Dep’t 2002) (89 year old fell over bright orange electrical card; issues of fact as towhether “trivial” and open and “obvious”); Acevedo v. Camac , 293 A.D.2d 430, 740N.Y.S.2d 380 (2d Dep’t 2002) (placing ladder in puddle of water goes to comparativenegligence); Tiriro v. Westland South Shore Mall, ,L.P. , 291 A.D.2d 489, 739 N.Y.S.2d 393(2d Dep’t 2002) (platform around ride); Andrews v. County of Onondaga , 298 A.D.2d 837,747 N.Y.S.2d 631 (4 ^th Dep’t 2002) (tires at bottom of hill used for sled riding); Caraballo v.Paris Maintenance Corp. , ___ N.Y.S.2d ___ (Sup. Ct. Bronx County 2002) (fall overvacuum cleaner); DeConno v. Golub Corp. , 255 A.D.2d 734, 680 N.Y.S.2d 727 (3d Dep’t1998) (plaintiff tripped over an orange marker cone placed in the aisle of the defendant’ssupermarket); Hall v. 130-10 Food Corp. , 257 A.D.2d 493, 684 N.Y.S.2d 213 (1 ^st Dep’t1999) (the plaintiff, while working, tripped over a box left on a loading dock 10 to 15seconds before his fall; plaintiff was walking backwards dragging milk cartons when hetripped on the box); Crawford v. Marcello , 247 A.D.2d 907, 668 N.Y.S.2d 852 (4 ^th Dep’t1998) (plaintiff had claimed that she tripped over a 20 foot long chain ; even if readilyobservable, issue is one of comparative fault); Tenebrusco v. Toys R Us-NY Tex, Inc. , 256A.D.2d 1236, 682 N.Y.2d 785 (4 ^th Dep’t 1998) (child fell over a toy or box left in an aisle;issue of comparative for jury); Jiminez v. Urban Universal Structures, Inc. , 174 A.D.2d 604,571 N.Y.S.2d 311 (2d Dep’t 1991) (plaintiff fell over a single brick left on a sidewalk near aconstruction site. Apparently, neither the sidewalk nor the brick were defective. Thedefendant, however, moved for a directed verdict at trial on the ground that the conditionwas readily observable and the plaintiff was bound to see it. In reversing the dismissal, theAppellate Division, Second Department held:

“ In support of its argument, the defendant, relying on Weigand v. United Traction Co. , 221 N.Y. 39, 116 N.E.345, asserted that the plaintiff was bound to see what, bythe proper use of his senses, he should have seen, namely,the brick. The Court, without explanation, granted thedefendant’s motion, and the complaint was dismissed. We now reverse . . . The Weigand doctrine will not beapplied to absolve a defendant from its own negligencewhere there is evidence that the condition causing theinjury was inherently dangerous . . . Here, the plaintiffpresented sufficient evidence from which a trier of factcould conclude that the condition causing the plaintiff’sinjury was inherently dangerous, and that the defendanteither created the condition or had constructive noticethereof.”);

Morell v. Peekskill Ranch, Inc. , 64 N.Y.2d 859, 487 N.Y.S.2d 319 (1985), rev’g , 104A.D.2d 492, 479 N.Y.S.2d 241 (2d Dep’t 1984) (Court of Appeals on basis of dissent inAppellate Division reversed dismissal of complaint where plaintiff fell off dirt path whichlower court determined that since condition was openly visible, and plaintiff was bound tosee it); Morgan v. Genrick , 239 A.D.2d 919, 659 N.Y.S.2d 638 (4 ^th Dep’t 1997) (AppellateDivision reversed dismissal of complaint where plaintiff fell on “open” and apparent icyconditions noting: “The fact that the icy conditions were readily observable may be relevantto the issue of plaintiff’s comparative negligence, but it does not negate the duty ofdefendants to keep their premises reasonably safe”); Vliet v. Crowley Foods, Inc. , 263A.D.2d 941, 693 N.Y.S.2d 338 (3d Dep’t 1999) (denial of summary judgment proper wheredefendant argued no duty where plaintiff attempted to remove top crate above head, whosepositioning was “readily observable”; issue relates to comparative fault); Gutchess v. Tarolli ,262 A.D.2d 1008, 691 N.Y.S.2d 817 (4 ^th Dep’t 1999) (summary judgment not appropriatewhere plaintiff rode bicycle across lawn into two-to-three-foot high rope which defendantclaimed was “readily observable”); Tuttle v. Anne Leconey, Inc. , 258 A.D.2d 334, 685N.Y.S.2d 204 (1 ^st Dep’t 1999) (even though standing on chair was “open and obviousdanger”, defendant still owed duty; plaintiff’s actions raise issues of comparative fault); Herman v. Town of Clarence , 256 A.D.2d 1229, 683 N.Y.S.2d 456 (4 ^th Dep’t 1998)(summary judgment denied where plaintiff tripped over a railroad tie in parking lot whichdefendant claimed was “readily observable”); Kiett v. New York City Housing Auth., 225A.D.2d 422, 681 N.Y.S.2d 54 (2d Dep’t 1998) (defendant not absolved of liability evenwhere plaintiff admitted seeing hazard , but fell attempting to avoid it; plaintiff’s actionsattributed to comparative fault); Raimondo v. St. Andrew’s Roman Catholic Church Societyof the Town of Tonawanda , 247 A.D.2d 875, 668 N.Y.S.2d 808 (4 ^th Dep’t 1998) (fact thatcondition was “open and obvious” not basis for summary judgment); Comeau v. Wray , 241A.D.2d 602, 659 N.Y.S.2d 397 (3d Dep’t 1997) (plaintiff’s awareness of dangerouscondition of stairs does not absolve defendant, but raised issue of comparative fault).

             But, there are other cases that go the other way also:

                         Borra v. Walden Books, Inc. , 298 A.D.2d 542, 748 N.Y.S.2d 620 (2d Dep’t2002) (fall over footstool in bookstore aisle); Alonso v. New York City Transit Auth. , 298A.D.2d 311, 748 N.Y.S.2d 498 (1 ^st Dep’t 2002) (fall over plywood flooring on well-litsubway platform and painted bright yellow around edges); Maravelli v. Home Depot, USA,Inc. , 266 A.D.2d 437, 698 N.Y.S.2d 708 (2d Dep’t 1999) (the plaintiff tripped on a sinkvanity located in the bathroom fixture aisle of a home improvement store); Weiner v. SaksFifth Avenue , 266 A.D.2d 390, 698 N.Y.S.2d 330 (2d Dep’t 1999) (plaintiff tripped on theleg of a clothing rack in the aisle of a store -- which sold clothes); Lamia v. FederatedDepartment Stores, Inc. , 263 A.D.2d 498, 692 N.Y.S.2d 738 (2d Dep’t 1999) (the patronwas walking down aisles of clothing racks “to inspect merchandise on one of the racks ”); Reuscher v. Pergament Home Centers, Inc. , 247 A.D.2d 603, 669 N.Y.S.2d 232 (2d Dep’t1998) (fall over the leg of a display stand located in a store whose function and obviouspurpose was to display merchandise for sale to customers who visited the premises for thatpurpose); Russell v. Archer Building Centers, Inc. , 219 A.D.2d 772, 631 N.Y.S.2d 102 (3dDep’t 1995) (patron to a hardware/lumber store fell over a tile display while shopping in thestore to view and purchase the very tile on display); Hatch v. Regblo Ltd. , 239 A.D.2d 771,657 N.Y.S.2d 818 (3d Dep’t 1997) (patron tripped on a milk crate in the aisle of asupermarket ); Pepic v. Joco Realty, Inc. , 216 A.D.2d 95, 628 N.Y.S.2d 89 (1 ^st Dep’t 1995)(plaintiff was the cleaner of the very premises where she fell over a planter; she knew of thepresence of the planter from her duties and “she had previously cleaned the picture three orfour times without incident”); Gransbury v. K-Mart Corp. , 229 A.D.2d 891, 646 N.Y.S.2d406 (3d Dep’t 1996) (plaintiff tripped over a shopping cart post in front of the store in a rowof several posts which stood 3 foot 9 inches tall and 4 inches square; the Court found thefollowing to be significant:

“ a) The posts were installed in 1983 -- seven years before the 1990 incident;

b) Over one million individuals walked past the row ofposts without a single accident in the seven years of theirexistence.”);

DeRossi v. Golub Corp. , 209 A.D.2d 911, 619 N.Y.S.2d 195 (2d Dep’t 1994) (plaintiff wasshopping in the frozen food aisle of a supermarket, walking down an aisle that was 10 to 12feet wide ; centrally located in that aisle was a freezer three feet by five feet wide).

VI.        THE NEW SIDEWALK LAW IN THE CITY OF NEW YORK

- TORT REFORM COMES TO NEW YORK CITY

The politicians’ clamor for tort reform grew awfully loud this year on many fronts. And, as usual, trial lawyers took a beating for doing their jobs and applying the law. So,after a great deal of rhetoric, New York City has a new law regarding sidewalk liability. Atthe urging of the Mayor of the City of New York, Michael Bloomberg, and his appointedCorporation Counsel, Michael Cardozo, the City Council of the City of New York passed anew Section 7-210 of the Administrative Code of the City of New York. The new lawapplies to all actions occurring on or after the effective date. It provides as follows:

“ Section 1. The Administrative Code of the City of New York isamended by adding a new Section 7-210 to read as follows:

Section 7-210 Liability of real property owner for failure tomaintain sidewalk in a reasonably safe condition.

a. It shall be the duty of the owner of real propertyabutting any sidewalk, including, but not limited to, theintersection quadrant for corner property, to maintain suchsidewalk in a reasonably safe condition.

b. Notwithstanding any other provision of law, the ownerof real property abutting any sidewalk, including, but not limitedto, the intersection quadrant for corner property, shall be liablefor any injury to property or personal injury, including death,proximately caused by the failure of such owner to maintain suchsidewalk in a reasonably safe condition. Failure to maintain suchsidewalk in a reasonably safe condition shall include, but not belimited to, the negligent failure to install, construct, reconstruct,repave, repair or replace defective sidewalk flags and thenegligent failure to remove snow, ice, dirt or other material fromthe sidewalk. This subdivision shall not apply to one-, two- orthree-family residential real property that is (i) in whole or inpart, owner occupied, and (ii) used exclusively for residentialpurposes.

c. Notwithstanding any other provision of law, the cityshall not be liable for any injury to property or personal injury,including death, proximately caused by the failure to maintainsidewalks (other than sidewalks abutting one-, two- or three-family residential real property that is (i) in whole or in part,owner occupied, and (ii) used exclusively for residentialpurposes) in a reasonably safe condition. This subdivision shallnot be construed to apply to the liability of the city as a propertyowner pursuant to subdivision b of this section.

d. Nothing in this section shall in any way affect theprovisions of this chapter or of any other law or rule governingthe manner in which an action or proceeding against the city iscommenced, including any provisions requiring prior notice tothe city of defective conditions.

Section 2. This local law shall take effect on the sixtieth dayafter it shall have become a law and shall apply to accidentsoccurring on or after such effective date.”

             Paragraph b specifically exempts one, two or three-family residences that are “wholeor in part” owner occupied, and used exclusively for residential purposes . The Sectionapplies to all residential properties of four families and above, all commercial properties, andto one, two, or three family resident properties, which are either not owner occupied orwhich are, in part, used for non-residential reasons. Thus, the Section would obviouslyapply to residences which contain an office for a doctor, lawyer, or any other commercialenterprise, even though it also has residential tenants.

             The Section is most significant, of course, because it now places responsibility forthe maintenance of sidewalks squarely on the abutting landowner. While the City still ownsthe sidewalk, the owner of the adjoining property is required to maintain that sidewalk “in areasonably safe condition”. Moreover, the ordinance imposes liability on the propertyowner for any injury to person or property and any death caused by the failure of the ownerto maintain the sidewalk “in a reasonably safe condition”. The ordinance specificallyprovides that the failure to maintain the sidewalk shall include, but is not limited to, “thenegligent failure to install, construct, reconstruct, repave, repair or replace defectivesidewalk flags”.

             What happens if your seriously injured client falls in front of a property whichhas no insurance coverage? New Section 7-211 requires that all real property owners(other than a public corporation, or a State or Federal agency, or its instrumentality) arerequired to maintain an insurance policy to protect against injury to property, person ordeath caused by the failure to maintain the abutting sidewalk, as provided for in Section7-210. If the owner is not insured, the City does not assume the uninsured owner’sliability. See Section 7-211. However, under Section 7-212, if there is an uninsuredowner, the City would be responsible after satisfying itself that there is no liabilityinsurance or other assets to satisfy a judgment against the adjoining property owner tomake a single payment not to “exceed uncompensated medical expenses” and not toexceed $50,000, with a cap on the total amount payable in any given fiscal year set at $4million. (In other words, don’t hold your breath trying to collect here.)

A.          Will Big Apple Maps Become A Useless Tool?

             Before the new provisions even took effect, and before we could see how they wouldaffect our ability to try -- and win -- a sidewalk case, there have been predictions that BigApple Maps will fall out of favor as a necessary tool. I disagree.

             First, the City will still be liable for all defects on the public sidewalk and thecurbs in front of one, two and three family owner occupied/residential-only premises. Section 7-201 has not been repealed. Prior written notice under Section 7-201 remains acondition precedent to recovery in all such cases. There are plenty of such residences inBrooklyn, Queens, the Bronx, and, Staten Island. And, as we all know, there is only one reliable source for prior written notice to the City of New York -- the Big Apple Maps.

             Second, the crosswalks remain the exclusive province of the City. The newprovisions have no bearing on crosswalk liability. So, prior written notice under Section7-201 is still a requirement. Where do you get such notice? -- Big Apple.

             Third, the new provisions speak only to defective sidewalks . Glaringly absent isany reference to the curb . The curb is actually a part of the street. Since the newprovisions make no reference to curbs, they must be strictly construed against the City toexclude curbs from the responsibility of private owners in the newly created liabilityclass. See Walker v. Town of Hempstead , 84 N.Y.2d 360, 618 N.Y.S.2d 758 (1994).

             We can see this when we read the definitions provided under the existing priornotice law. Section 7-201(c) defines a “street” to include the “curbstone”. It separatelydefines a “sidewalk” to include a “boardwalk, underpass, pedestrian walk or path, stepand stairway”. Conspicuously absent from the definition of “sidewalk”, but obvious inthe definition of “street”, is the “curbstone”. We just don’t have that distinction underthe new provisions. So, do you take the chance in an action involving a fall on adefective curb to sue only the adjoining owner in the new liability class, and foregoserving a Notice of Claim against the City and ultimately joining both in a lawsuit? Inmy opinion, you must serve a Notice of Claim and join the City in any suit arising fromany curb-related accident.

             If the curbs remain the exclusive responsibility of the City of New York, you willneed to show prior written notice under Section 7-201. You will need the Big AppleMaps to do this.

             Fourth, the City of New York is one of the largest landowners in the fiveboroughs. It is not exempt from liability under the new provisions, when it is acting in its proprietary (as opposed to governmental) capacity as “the owner of real property abuttingany sidewalk”. Section 7-210(c) specifically exempts the City from liability for thefailure to maintain sidewalks adjoining properties in the new liability class. It alsospecifically states, however, that such limitations:

“shall not be construed to apply to the liability of the City as a propertyowner pursuant to subdivision b of this section.”

             So, when the City is the owner of a building which is a four-family residentialbuilding, or a “commercial” building (City Hall, the Municipal Building and every policestation and firehouse included), the City should be liable under Section 7-210(b) for thedefective sidewalk.

             And, just think about it -- how many buildings does the City own that are one,two or three family “residential” properties? None of them will be owner-occupied, andthe City will be liable for maintaining the adjoining sidewalk just like every other privateowner.

             Under these circumstances, can’t we use the Big Apple Map to show that a defectexisted for a considerable period of time in front of the City’s own building -- but theCity failed to repair it as required by its own law?

             So, contrary to those who see the demise of Big Apple, I believe it remains anecessary tool in preparing and proving sidewalk cases.

B.          Constructive Notice Is All That Will Be Needed

Against The New Liability Class

             One of the necessary elements of a negligence claim for a premises defect is notice. Actual notice is always great if you have it -- but when was the last time any owner everadmitted knowing of a defect? Constructive notice is usually the only means forestablishing this factual element. Photographs of the condition alone are sufficient to createthe inference that the defect existed for a period long enough to have allowed the owner tohave discovered the condition and repaired it.

             Under the new law then, constructive notice is all that you need against the new classof responsible property owners. And, with the City out of the picture, you no longer need toshow prior written notice for the class of adjoining owners covered by the law. For non-Cityowners, we get to start a sidewalk case without having to file a Notice of Claim or attend a50(h) hearing.

             What happens if the City is the adjoining property owner under the new law? Well,you still need to file a Notice of Claim within 90 days. You will still need to attend a 50(h)hearing. You still must file the summons and complaint within one year and ninety days. Ifthe law means what it seems to say, constructive notice will be all that you will need toprove when the City is the adjoining owner. And, since you don’t need prior written notice, Katz v. City of New York , 87 N.Y.2d 241, 638 N.Y.S.2d 593 (1995) should not apply torequire the most current Big Apple Map, since prior written notice is not a conditionprecedent to the claim. Instead, why not use the earlier map to show a defect for the purposeof establishing actual notice, since the City concededly never inspected or repaired the area,regardless of how many maps it received?

             C.          Don’t Ignore Actual Notice Or Proof That The Owner

                         “Caused And Created” The Defect

             While constructive notice is all that is required under the new law, don’t pass up thechance to show that the owner had actual notice of the condition, or that it “caused andcreated” the defect. Such proof is always a powerful weapon, and should be presentedwhenever possible.

             And, remember, you still can prove a case against the exempt class of one, two andthree-family properties if you can demonstrate that the private owner created the defect. When prior written notice is still required against the City under those circumstances, youcan avoid the need to prove it, if the City of New York created the condition. Kiernan v.Thompson , 73 N.Y.2d 840, 537 N.Y.S.2d 122 (1988).

             D.          Special Uses

             Remember, private owners of those premises in the “exempt” category of one, twoand three family residential/owner occupied homes are still liable for defects arising fromtheir special use.

             E.          Can We Finally Use The City’s Definition

                         Of Substantial            Defect To Beat The “Trivial

                         Defect” Defense?

             As we have seen, you will often be met with a defense that the defect is “trivial”, thatis, a defect so insignificant that a reasonable landowner can reasonably decide not to repair itand leave it alone. But, as referenced above, the City’s own rules define what a “substantialdefect” is under Section 2-09 of the DOT Rules and Regulations, and under Section 19-152of the Administrative Code.

Perhaps, the City’s own standard -- which it always refused to acknowledge as a“standard” at trial -- will shed some light on what a “substantial defect” is under the newlaw, and will help allay the concerns of even the most cynical juror. The standard is worthrepeating:

“ -5 Substantial defects . Any of the following conditionsshall be considered a substantial defect.

             (i)          One or more flags missing or sidewalknever built.

             (ii)         One or more flag(s) cracked to such anextent that one or more pieces of the flag(s) may beloosened or readily removed.

             (iii)        An undermined flag below which there isa visible void or a loose flag that rocks or seesaws.

             (iv)        A trip hazard where the verticaldifferential between adjacent flags is greater than or equalto ½” or where a flag contains one or more surfacedefects of one inch or greater in all horizontal directionsand is ½” or more in depth.

             (v)         Improper slope, which shall mean (i) aflag that does not drain toward the curb and retains water,(ii) flag(s) that shall be replaced to provide for adequatedrainage or (iii) a cross slope exceeding establishedstandards.

             (vi)        Hardware defects , which shall mean (i)hardware or other appurtenances not flush within ½” ofthe sidewalk surface or (ii) cellar doors that defect greaterthan 1” when walked on, are not skid resistant or areotherwise in a dangerous or unsafe condition.

             (vii)       A defect involving structural integrity,which shall mean a flag that has a common joint, which isnot an expansion joint with a defective flag and has acrack that meets the common joint and one other joint.

             (viii)      Non-compliance with Departmentspecifications for sidewalk construction.

             (ix)        Patchwork, which shall mean (i) less thanfull-depth repairs to all or part of the surface area ofbroken, cracked or chipped flag(s) or (ii) flag(s) partiallyor wholly constructed with asphalt or other unapprovednon-concrete material; except that patchwork resultingfrom the installation of canopy poles, meters, light poles,signs and bus stop shelters shall not be subject to thisprovision unless the patchwork constitutes a substantialdefect as set forth in subparagraphs (i) through (viii) ofthis paragraph.” Section 2-09, Rules and Regulations,Department of Transportation of the City of New York.

Before the new law, the City had objected to any request to charge this section to thejury, even for the limited purpose of defining a “substantial defect”. It contended that theprovisions were intended to provide guidance to its inspectors for issuing violations toproperty owners as provided under Section 19-152. And, since the duty to repair under thatsection existed only between the property owner and the City, the reasoning went that only the City could use the section to enforce Section 19-152 against the private owners.

That should change under the new law. Now, for the first time, the adjoining owner has a duty to the general public to maintain the abutting sidewalk. It is required to followthe “guidelines” set by the City -- Section 19-152 and Section 2-09 -- and to repair theabutting sidewalk when those criterion exist. So, when charging the jury on the new law andadvising the jury of the abutting owner’s duty to repair the sidewalk, the definition of“substantial defect” under Sections 19-152 and 2-09 should be charged as well to explainthat duty.

             F.          And, Now For The Special Part

             If you’re not happy with having a whole new class of defendants, and not sure youcan prove a case against them with constructive notice, here’s a few other points that shouldmake you think again.

             1           Liability For Failing To Clean

             “Dirt Or Other Material”

             We’ve gotten used to proving prior written notice of holes, cracks, and depressions. We’ve tried to show a defect was caused by some negligent, affirmative act. Who hasn’tlooked for some “special use” as the basis for liability? We’ve scratched our heads over thetrue meaning of the term “trivial” defects. But, did we ever think that liability would beimposed against an adjoining owner for failing to remove “dirt” from its sidewalk? Howabout liability against an owner who fails to remove “other material” from the sidewalk -- aterm that has endless possibilities. Well, now we do.

             Section 7-210(b) imposes that liability on the new class of adjoining owners:

“ Failure to maintain such sidewalk in a reasonably safecondition shall include, but not be limited to . . . thenegligent failure to remove snow, ice, dirt or othermaterial from the sidewalk”.

So, what conditions would fall under this provision of the new law? Here’s a few I can thinkof:

                         1           Leftover sand from snow removal operations (it’s either dirt or “othermaterials”);

                         2           Leftover salt from snow removal operations (“other materials”);

                         3           Slippery soap conditions from a car wash;

                         4           Wet leaves;

                         5           Grease that mysteriously appears on a sidewalk near a restaurant.

And, remember, you need only prove constructive notice of the condition. Be ready, ofcourse, for all of the summary judgment motions, based on Gordon v. American Museum ofNatural History .

                         2           Let It Snow, Let It Snow, Let It Snow!

             The winter of 2002-2003 was just awful, and this year has been a close second. Itjust didn’t stop snowing last year, with a blizzard thrown in for good measure. But, unlikethis year, there was not much of a chance to prove a case against the adjoining owner, muchless the City of New York.

             Remember, when it comes to clearing snow and ice from the sidewalk, the City’sduty flows from its governmental responsibility, and not its proprietary capacity as owner ofthe sidewalk. So, Valentine v. City of New York , 86 A.D.2d 381, 449 N.Y.S.2d 991 (1 ^st Dep’t 1982), aff’d , 57 N.Y.2d 932, 457 N.Y.S.2d 240 (1982), has stood as a major obstacleto any claim against the City for its failure to clear snow and ice following a storm. It heldthat the failure by the City to clear snow and ice in the 30 hours between the end of thestorm and the happening of the accident was not, as a matter of law , actionable.

             The adjoining owner had no duty to clear snow and ice at all. It could only be heldliable if its affirmative act made the condition worse.

             As the discussion immediately preceding this section shows, in addition to “dirt” and“other material”, Section 7-210(b) imposes liability for the failure to remove “ snow” and“ice ”. So, where once there was no liability, now there is. Property owners who eitherignored the accumulated snow and ice or, having attempted to remove it, denied ever doingso, are now liable for failing to remove the snow or ice in a reasonable period of time afterthe storm. Valentine does not apply. The creation of a worsened condition because ofnegligent removal is not needed to win. Instead, the adjoining owner now has an affirmativeduty to clear snow and ice. So, Jack Frost, welcome!

CONCLUSION

             The next time a colleague tells you how “easy” or “simple” a “City” case is, just askthe last time they had to try one.

             If you get past the legal obstacles, the judge’s rulings, and the jury’s cynicism, andmanage a victory -- it is a well-deserved win!

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