Santiago v City of New York

[*1] Santiago v City of New York 2009 NY Slip Op 50703(U) [23 Misc 3d 1111(A)] Decided on March 24, 2009 Supreme Court, Richmond County Aliotta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 24, 2009
Supreme Court, Richmond County

Sigfredo Santiago, Plaintiff,

against

The City of New York, Defendant.



12996/00

Thomas P. Aliotta, J.

In this action, plaintiff claims to have sustained injuries to his face, back and neck as the result of a trip and fall in the North Shore Esplanade Park (hereinafter "The Esplanade"), a fully paved area which runs along Richmond Terrace on Staten Island. Plaintiff asserts that on October 9, 1999, he went to The Esplanade, which he describes as a "wide open space" to play with his boys (see Plaintiffs Exhibit "A", p 24). According to plaintiff, as he tried to catch a football thrown by one of his sons, he tripped and fell into a depression near one of the benches that line the Esplanade.

In support of dismissal, the City asserts that plaintiff failed to plead compliance with the prior written notice requirement of Section 7-201 (c)(2) of the Administrative Code of the City of New York, a well established condition precedent to a tort action against the City for personal injuries attributable to a purported defect in "any street, highway, bridge, wharf, culvert, sidewalk or crosswalk" (see Kelly v City of New York, 172 AD2d 350). In this regard, the City maintains that the area in question is a "sidewalk" for purposes of the Administrative Code § 7-201(c)(1)(b), which is defined as including "a boardwalk, underpass, pedestrian walk or path, step and stairway". Consonant with the foregoing, the City maintains that it cannot be held liable in the absence of prior written notice of the depression into which plaintiff allegedly fell, which is plainly lacking in this case. As proof, the City has submitted a copy of the deposition testimony of Principal Parks Supervisor Philip Rabena, who testified that a search was performed for, e.g., work orders docketed within the two years prior to and including the date of plaintiff's accident, and found only one relevant work order and a related repair to an unspecified area of The Esplanade more than nine months prior to the date of plaintiff's fall (see Defendant's Exhibit "D" pp 13-19). Moreover, to the extent that plaintiff may be heard to argue that the defect which caused his fall represented a recurrence of the above condition, the City responds that any such recurrence would still require prior written notice to be actionable (see McCarthy v City of White Plains, 54 AD3d 828, 830).

Referring to the acknowledged exceptions to the notice provision, the City argues that plaintiff has failed to establish that the City created the purported defect through an affirmative act [*2]of negligence, or that the defect was caused by a special use benefitting the City (see e.g. Amabile v City of Buffalo, 93 NY2d 471).

In opposition, plaintiff asserts that the requirement of prior written notice is inapplicable at bar, since plaintiff fell in paved area of a "park" which is "categorically different" from a "sidewalk", as defined by Administrative Code § 7-201 (c)(1)(b). In proffering this argument plaintiff has likened this case to other tort actions involving (1) a defective paddleball court (Walker v Town of Hempstead, 84 NY2d 360); (2) negligence in the maintenance of a recreational playing field (Zumbo v Town of Farmington, 60 AD2d 350); and (3) a tree well (Vucetovic v Epsom Downs, Inc., 10 NY3d 517). In the first two cases, it was held that prior written notice was not a condition precedent to municipal liability, and in the last case, it was held that a tree well did not constitute a part of the sidewalk for purposes of Section 7-210 of the Administrative Code. In addition, plaintiff relies upon the photographs submitted as his Exhibit "C" to argue that "it is plainly obvious that there was no sidewalk in the area of the accident", and that any attempt to expand the definition of "sidewalk" to include the area in question is improper and unconstitutional.

The motion is granted.

The City established its entitlement to judgment as a matter of law by demonstrating the absence of prior notice of the allegedly defective condition which caused plaintiff's injury. In opposition, plaintiff does not challenge this assertion, but claims that Administrative Code § 7-201(c)(1)(b) does not apply to the area in question.

Contrary to the position adopted by plaintiff, it is the opinion of this Court that the photographs which he submitted reveal that the area where he fell "functionally fills the same purpose"(Woodson v City of New York, 93 NY2d 936, 938), as a "pedestrian walk or path", both of which fall within the definition of "sidewalk" under Administrative Code § 7-201(c)(1)(b). Worthy of note is this regard is the fact that The Esplanade meanders along the waterfront, narrowing during much of its length to take on all of the physical characteristics of a sidewalk. It is also lined with benches, upon which a pedestrian might rest and enjoy a view of the Manhattan skyline (see e.g. Roman v City of New York, 38 AD3d 442; Arias v City of New York, 284 AD2d 354; see also Haxhaj v City of New York, 19 Misc 3d 1135A [Sup Ct NY Co 2008]). Also of relevance are those cases which hold that a paved pathway in a park upon which pedestrians walk or bike is subject to the prior written notice requirement[FN1]. Finally, it is not without significance that the word "esplanade" is defined in Webster's New Collegiate Dictionary (1981) as "a level open stretch of paved or grassy [*3]ground; esp: one designed for walking ... along a shore".The Court has considered the balance of the parties' arguments and finds them to be without merit.

Accordingly it is hereby

ORDERED, that defendant's motion for summary judgment is granted and the complaint dismissed; and it is further

ORDERED, that the Clerk of the Court enter judgment accordingly.

E N T E R,

__/s/____________________________

Dated: March 24, 2009Hon. Thomas P. Aliotta

J.S.C. Footnotes

Footnote 1:In fairness, although still subject to the prior written notice requirement, it must be conceded that a "road or path within a park" is categorized as a "street" for purposes of the relevant section of the Administrative Code (Administrative Code § 7-201[c][1][a]). It must also be conceded that there is some overlap between the definition of "sidewalk" and that of a "street" in Administrative Code § 7-201(c)(1), the second of which is defined to include certain areas typically utilized by pedestrians, i.e., a "public way, public square [and] public place". Both require prior written notice.