Sheikh v City of New York

[*1] Sheikh v City of New York 2016 NY Slip Op 51652(U) Decided on November 1, 2016 Civil Court Of The City Of New York, Richmond County Straniere, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016
Civil Court of the City of New York, Richmond County

Azeem Sheikh, Claimant,

against

The City of New York, Defendant.



SCR 61/16
Philip S. Straniere, J.

Claimant, Azeem Sheikh, commenced this small claims action against the defendant, City of New York, alleging that owing to the negligence of the defendant in maintaining its roads, claimant's automobile was damaged. A trial was held on October 20, 2016. Claimant represented himself. Defendant was represented by counsel.

Claimant testified that on March 11, 2015 he was proceeding on the Gowanus/BQE highway spur towards the Verrazano[sic][FN1] -Narrows Bridge when at approximately 7:45PM he hit a pothole damaging his tire. He drove off the expressway at the 86th Street exit and called road service for a tow. The vehicle was not towed until after midnight on March 12, 2015. Claimant timely filed a notice of claim with the defendant as required by General Municipal Law (GML) §50-e. However, defendant refused to settle the claim initially because of the discrepancy between the date in the notice of claim for the incident, March 11, 2015, and the date on the towing and tire repair receipts, March 12, 2015. At the trial claimant credibly explained the discrepancy and established that the date he hit the pothole was March 11, 2015. Claimant submitted paid bills for certain repairs and estimates for other repairs not yet done.

At the trial defendant moved to dismiss the complaint alleging that there was no "prior written notice" of the condition; the alleged pothole was not described with any particularity; and any notice it did receive from the "311" system was less than two weeks before the date of the incident.

New York City Administrative Code (NYCAC) §7-201 requires that the City have at least fifteen days' notice of the particular defect before a person allegedly injured because of the defect can successfully maintain a suit for damages. The statute provides:

Actions against the city(c) (2) No civil action shall be maintained against the city for damage to property or injury to person or death sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk, being out of repair, unsafe, dangerous or obstructed, unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or [*2]where there was written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.4. Written acknowledgement shall be given by the department of transportation of all notices received by it.

Claimant admitted that he never made a complaint prior to the date of the incident. However, claimant produced a copy of the "Service Request Receipt" dated March 13, 2015 he received from SRNotification@customerservice.nyc.gov, which set forth a "service request No." and stated: "Thank you for contacting New York City 311. Your Service Request has been sent to the Department of Transportation for action."

On March 15, 2015 he received the following notice from the same source: "Your Service Request was updated. The Department of Transportation will inspect the condition and will determine the next action. Pending inspection on 3/15/15."

Later on March 15, 2015 he received the following notice from the same source: "Your Service Request was closed. The Department of Transportation has completed the request or corrected the condition. Pending inspection on 3/15/15 3/15/15 work completed. (em)."

At no time was there produced any written acknowledgment from the Department of Transportation (DOT) of receipt of the complaint as required by the statute. Although claimant had documentation from customer service at nyc.gov indicating the complaint was sent to DOT there is nothing directly from the agency.

Defendant produced records from the Department of Transportation Bridges & Highways Division, showing the receipt of 311 calls/nyc.gov e-filings about pothole conditions on that stretch of the expressway. The documents show two nyc.gov filings received on March 6, 2013, marked "anonymous" but with an email address for the customer; two on March 11, 2013 from the 311 call center, one on March 12, 2013 from the 311 call center and one on April 28, 2013 from the 311 call center. Defendant did not produce its records reflecting the complaint made by the claimant and verified by claimant's evidence. There are no records produced by the defendant showing any complaints to DOT more than fifteen days before claimant hit the pothole. Presumably defendant made a good faith effort to check its records even though claimant did not subpoena any records from the defendant.

The defendant's records from the DOT show pothole repair in that area on March 6, 2013. No repair was made after the March 11 and 12, 2013 complaints to the 311 call center as the DOT determined it was not responsible for the repair because it was "beyond pothole repair. This is a NYSDOT highway in need of resurfacing and they have been notified." This raises the issue not addressed in the litigation as to whether the city or state is responsible for highway maintenance in this area.

Defendant also produced records, not identified from any particular agency, showing pothole repair being undertaken on February 21, 2015 on that portion of the expressway. Additional repairs were done on March 10, 2015 and March 13, 2015 in that area. This report does not indicate if the repairs were being done in the regular course of road maintenance or as a result of a complaint from either the 311 call center or nyc.gov. In light of the incomplete information contained in defendant's records, claimant may have [*3]had to have subpoenaed all relevant files in order to determine why the repairs were done.

It should be noted that neither party produced a copy of the notice of claim filed by the claimant making it impossible to determine if the pothole he alleges he hit is described with sufficient specificity so as to maintain this cause of action.

Legal Issues Presented:

Does Contacting 311 or nyc.gov Constitute Prior Written Notice?

As Nobel Prize winner Bob Dylan noted "The Times They Are a Changin'." New means of technology require the court system to analyze current legal procedures and to see if they are applicable to the changes in how information is communicated and whether the public interest and due process rights are being served by not recognizing these new modes of communication.

The Court of Appeals in Gorman v Town of Huntington, 12 NY3d 275 (2009), held that a verbal communication that is reduced to writing cannot satisfy a prior written notice requirement in a statute. An "open request" generated from a "311 call" received on a computer system does not constitute a "written acknowledgement" by the City of a defective condition [Tortorici c City of New York, 131 AD3d 959 (2015); Haulsey v City of New York, 123 AD3d 606 (2014)]. Based on these cases, the mere fact that the defendant responded to anonymous or even caller identified complaints of potholes based on 311 calls does not meet the "prior written notice" requirement of the statute. The cases do not seem to address the issue of complaints received through the nyc.gov e-filing system now available where the complaining person completes a form on a template produce by the City or its agents and forwarded to the appropriate agency for investigation and resolution.

The refusal to recognize 311 call center or nyc.gov complaints as prior written notice must be questioned. The City promotes the 311 call center/nyc.gov to the public as the method to notify the City of problems and to have those complaints expeditiously addressed. Callers are given a "complaint number" and are invited to check to see how the complaint has been addressed. The verbal complaint is reduced to writing on a computer system maintained by the defendant and forwarded to the appropriate agency for response. The evidence submitted by the claimant shows how the procedure works and how the person filing the complaint is notified as to the status through the use of emails. Claimant's exhibits actually show that DOT was notified of the condition. It appears that 311/nyc.gov forwards status reports to the complainant if an email address is provided.

There is no indication that the 311/nyc.gov operator tells callers that this system does not qualify as "prior written notice" under the statute and that additional steps should be taken to protect the caller's rights, such as sending a letter.

This also does not address the situation where a complaint is submitted online through the nyc.gov website. Does this qualify as "prior written notice" so as to comply with the statute? The system permits a person to file a complaint about street conditions by filling in a form. It appears that the 311/nyc.gov system acknowledges receipt of the complaint, generates a complaint number for the person complaining and forwards the complaint via computer message to the proper agency. It does not indicate that a "hard" copy must be delivered to a particular city agency in order to serve as notice of a defect for any subsequent incidents.

This would lead to the person filing the report to believe that using the 311/nyc.gov [*4]system gives the City notice of the condition. Obviously, the odds that the person filing the first report would have a viable claim fifteen days later, are miniscule. But by treating both the 311 call center and nyc.gov as not "written notice," the current state of the law would deny any subsequent person damaged by the defect a recovery because the City can assert noncompliance with the "prior written notice" requirement of the statute. The exhibits submitted by the defendant disclose that its records show that it differentiates between 311 complaints and those filed through nyc.gov. Under the current system, a person could be lulled into the belief that proper notice had been given to the City and that the law had been complied with in regard to registering the pothole or defect.

The State Technology Law (STL) §302(2) defines "Electronic record" as "information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities." It further goes on to provide: "An electronic record shall have the same force and effect as those records not produced by electronic means" [STL §305(3)]. In fact, such an electronic record is admissible in evidence [Civil Practice Law & Rules §4518(a)]. Based on these statutes it would seem that a minimum a nyc.gov e-filing would meet the statutory definition of an electronic record and constitute "prior written notice" to be in compliance with the administrative code.

So based on the current state of the law:

A hiker comes down from Mount Moses, and writes on a rock that he tripped in a hole on the path, and serves the rock on the City. Good notice.

Queequeg while on shore leave from the Pequod, falls on a broken board on the FDR Boardwalk, uses scrimshaw to carve the location of the incident on a whale bone and serves the scrimshaw on the City. Good notice.

Franz Liebkind on the way to the opening night of "Springtime for Hitler" hits a pothole while riding on his motorcycle. He uses a carrier pigeon to report the incident to the City. Good notice.

A refugee from the Lost Colony of Roanoke loses a wagon wheel in a pothole on Forest Avenue, carves the incident into a piece of wood and delivers the carving to the City. Good notice.

Use of a system developed by the City to learn of problems with municipal services from the public either by telephone or online. Not good notice.

However, taking everything into account, there is no evidence that there was a pothole complaint filed at nyc.gov more than fifteen days before the date of the incident, March 11, 2015 which was delivered to and acknowledged by the DOT so as to constitute prior written notice.

Is the Pothole Properly Identified?

In addition to the City having had fifteen days to address the designated street defect, any complaint must identify the location with sufficient specificity so that it may be properly located and the defect addressed. "As a matter of law, neither constructive notice nor written notice of defects near the site suffices to fulfill the notice requirement" [Rothstein v City of New York, 2011WL 3296205, quoting, Amabile v City of Buffalo, 93 NY2d 471 (1999)]. A repair order indicating holes in a 400-foor-long stretch of roadway [*5]was held as a matter of law insufficient to provide notice of a specific defect [Fraser v City of New York, 226 AD2d 424 (1996)]. So the fact that the City was repairing that stretch of the highway around the time of the incident does not mean that it was doing so in response to a written complaint or that any written complaint described the pothole with any specificity so as to qualify as prior written notice so claimant could maintain this action.

Apparently in New York it is not enough to say you hit one pothole of the many that exist along a particular stretch of roadway. The location of defects must be specific. Being close only applies in horseshoes and hand grenade tossing, not in identifying street defect sites.

It would seem that a person whose vehicle hits a pothole and then drives to the shoulder or exits the roadway so as not to block traffic or risk being rear-ended by another driver is creating a fatal defect in his or her prima facie case by doing so. New York has adopted its own version of "Spotty" Lincoln.[FN2]

It would seem that in order to preserve your rights, you should either (1) immediately use you GPS device to mark the location; or (2) get out of the vehicle and use your cell phone to take a panoramic view of the entire area; or (3) get out of the car with a tape measure and record the precise location of the pothole including how far it is from the lane markers, distance from the curb, and then how many feet from any distance markers provided along the highway. All of this will have to be done while vehicles are whizzing by you at 50 miles per hour. Hopefully you will not get a ticket for tying up traffic while you do this.

Applying these criteria to the facts of this case, it must be concluded that the claimant has not proven his prima facie case. Accepting for the sake of argument that the 311 or nyc.gov notifications received prior to the date of incident complied with the requirement of prior written notice, none of them specifically describe the pothole claimant hit. Although claimant has a receipt from the defendant acknowledging his complaint, there is nothing in that document to identify the specific location of the pothole claimant's vehicle hit.

The court will not comment on how many potholes exist on the streets and highways of New York after a winter and why when roads are repaved they cannot figure out how to do it without leaving a seam for a new pothole to form.

Conclusion:

Judgment for defendant. Claimant has failed to prove his prima facie case. There is no showing that there was prior written notice of the specific pothole received by the defendant fifteen days before the date of the incident. A properly submitted notice through the nyc.gov system would be sufficient to be prior written notice.

Judgment for defendant. Claimant's cause of action is dismissed.

Exhibits, if any, will be available at the office of the clerk of the court thirty days after receipt of a copy of this decision.

The foregoing constitutes the decision and order of the court.

Dated: November 1, 2016

Staten Island, NY

____________________________________

HON. PHILIP S. STRANIERE

Judge, Civil Court

Footnotes

Footnote 1:The correct spelling of the last name of the explorer who sailed into New York Bay in 1524 is Verrazzano, with two z's.

Footnote 2:In 1847 Abraham Lincoln as a member of Congress kept demanding of President James K. Polk to reveal the exact location of the "spot" on United States soil where American blood was spilled and used to justify the start of the Mexican War in 1846. Lincoln was given the name "Spotty" Lincoln, by his opponents.