Botsas v City of New York
Annotate this CaseDecided on July 1, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
Arthur Botsas, Appellant,
against
City of New York, Respondent .
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 7, 2013. The judgment, after a nonjury trial, dismissed the complaint.
ORDERED that the judgment is affirmed, without costs.
In this action, plaintiff seeks to recover damages based on injuries he allegedly sustained on January 24, 2009, when he tripped and fell on an uneven sidewalk in Queens, New York. At a nonjury trial, plaintiff was self-represented. He introduced into evidence photographs which, he testified, fairly depicted the uneven condition of the sidewalk on the date when he had fallen. Plaintiff's claim of injury from the fall was supported by the testimony of a physician who had reviewed plaintiff's X rays and medical reports and had performed a physical examination of plaintiff prior to the trial. Following the trial, the complaint was dismissed upon a finding that plaintiff had failed to prove either that defendant had adequate notice of the defect in the sidewalk, or that he had sustained injuries as a result of his fall.
At the outset, we note that, although he was self-represented, plaintiff was subject to the same rules as other litigants (see Roundtree v Singh, 143 AD2d 995, 996 [1988]; see also Matter of Evert, 72 AD3d 1081 [2010]; Walker v Jones, Sledzik, Garneau & Nardone, LLP, 67 AD3d 671 [2009]).
At trial, defendant City of New York did not dispute that it could, potentially, be held liable for injuries resulting from defects in the sidewalk where plaintiff said he had fallen (see Administrative Code of the City of New York § 7-210 [b], [c]). In order to maintain an action against the City of New York for injuries sustained in consequence of a sidewalk being unsafe, a litigant is required in the first instance generally to establish that the Commissioner of Transportation or Department of Transportation had prior written notice of the existence of the dangerous condition and failed to remedy the defect (see Administrative Code § 7-201 [c]; see also Wald v City of New York, 115 AD3d 939 [2014]; Phillips v City of New York, 107 AD3d 774, 774 [2013]). In support of his claim that defendant had prior written notice of the hazardous condition of the sidewalk where he had fallen, plaintiff, over defendant's objection, sought to introduce into evidence a copy of a "Big Apple Map" from 2003, which map apparently showed the existence of the uneven sidewalk upon which plaintiff claimed to have fallen. Although no ruling was stated on defendant's objection, the map was not admitted into evidence.
Maps prepared by the Big Apple Pothole and Sidewalk Protection Committee and filed with the New York City Commissioner of Transportation can satisfy the notice requirements of the Administrative Code of the City of New York (Katz v City of New York, 87 NY2d 241, 243 [1995]). The applicable map for notice is "the most recent map received from Big Apple prior to [*2]an accident allegedly caused by a defect identified on the map" (id. at 244; see also Adamson v City of New York, 87 AD3d 1088 [2011]). Plaintiff, however, failed either to authenticate the map or to establish if, or when, the 2003 Big Apple Map had been received by defendant or its agencies. Since plaintiff failed to establish that defendant had received sufficient prior notice of the defect in the sidewalk, we conclude that the dismissal of the complaint on that ground was proper.
In light of this conclusion, we reach no other issue.
We note that we do not consider those materials submitted by plaintiff on appeal which are dehors the record; nor do we consider any arguments raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).
Accordingly, the judgment is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: July 01, 2014
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