Bartels v City of New York

[*1] Bartels v City of New York 2013 NY Slip Op 51208(U) Decided on July 18, 2013 Supreme Court, Queens County Flug, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 18, 2013
Supreme Court, Queens County

Margaret Bartels, Plaintiff,

against

The City of New York, Defendant.



13264/11



Michael A. Cardozo, Esq.,

Corporation Counsel

by Robert W. Gordon, Esq.

Assistant Corporation Counsel

for movant/defendant The City of New York

Kenneth Sacks, Esq.

of Sacks and Sacks, LLP

for respondent/plaintiff Margaret Bartels

Phyllis Orlikoff Flug, J.

Motion Date...6/5/13

Motion Cal.

Number........8

Sequence No...1

The following papers numbered 1 to 4 read on this motion

Notice of Motion1 - 2

Affirmation in Opposition3 [*2]

Reply Affirmation4

Defendant, the City of New York, moves inter alia for summary judgment, dismissing plaintiff's Complaint as asserted against it.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff on September 3, 2010 as a result of a trip and fall due to a defective condition on the sidewalk/curb adjacent to Public School 146, on 98th Street, between 158th and 159th Avenues, in the County of Queens, City and State of New York.

On a motion for summary judgment, the proponent "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case" (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

The City contends it is entitled to summary judgment on the ground that it did not have prior written notice of the allegedly defective condition as required by New York City Administrative Code § 7-201[c]. In support of this contention, the City submits inter alia a response to a search for records in the area of plaintiffs accident for the two years prior to plaintiff's accident which demonstrates that no permits, applications, corrective action reports, notices of violations, complaints, contracts, or maintenance and repair records were found (See Koehler v. Incorporated Vil. of Lindenhurst, 42 AD3d 438 [2d Dept. 2007]; Adams v. City of Poughkeepsie, 296 AD2d 468, 469 [2d Dept. 2002]).

In addition, the City has established that it did not receive prior written notice of the allegedly defective condition based upon the Big Apple Map encompassing the area of plaintiff's accident because the Big Apple Map does not show markings for a defective curb at the area of plaintiff's accident (See Cuccia v. City of New York, 22 AD3d 516 [2d Dept. 2005]; Camacho v. City of New York, 218 AD2d 725, 726 [2d Dept. 1995]).

In opposition, plaintiff claims, as asserted in her Complaint, that the actual cause of her accident was a missing fence or barrier around a tree well and that the Big Apple Map does indeed [*3]contain a marking for this condition at the location of plaintiff's accident. However, as the map only provides notice that every tree well on the block lacked a fence or barrier, it is insufficient to constitute notice of the particular defect that caused plaintiff's accident (See O'Donoghue v. City of New York, 100 AD3d 402, 403 [1st Dept. 2012]).

Moreover, as plaintiff's notice of claim is void of any mention that she was caused to fall due to a missing fence or barrier around a tree well, plaintiff cannot assert such a theory now (See Scott v. City of New York, 40 AD3d 408, 410 [1st Dept. 2007]). The purpose of the Notice of Claim Requirement is to provide the municipality an opportunity to investigate the claim while information is still readily available. Without information as to the precise nature of the defect, the City was deprived this opportunity (See Barno v. New York City Housing Authority, 185 AD2d 292, 293 [2d Dept. 1992]).

Accordingly, defendant's motion is granted, in its entirety, and plaintiff's complaint is dismissed as asserted against the City of New York.

July 18, 2013 ____________________

J.S.C.