Somma v City of New York

[*1] Somma v City of New York 2010 NY Slip Op 51567(U) [28 Misc 3d 1231(A)] Decided on August 11, 2010 Supreme Court, New York County Jaffe, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2010
Supreme Court, New York County

Albert Somma, Plaintiff,

against

City of New York, Defendant.



404859/06



For plaintiff:

John G. O'Leary, Esq.

O'Leary & Spero

25 Manor Road

Staten Island. NY 10310

718-448-8400

For defendant:

Monica Kelly, Senior Counsel

Corporation Counsel

100 Church Street

New York, NY 10007

212-788-0482

Barbara Jaffe, J.

By notice of motion dated March 11, 2010, defendant moves pursuant to CPLR 3211 and 3212 for an order summarily dismissing the complaint. Having failed to address CPLR 3211 in its affirmation in support of the motion, I do not consider it. Plaintiff opposes the motion.

I. FACTS

On August 18, 2005, at approximately 12:45 a.m., plaintiff, a bartender by profession and an avid bicyclist and inline skater, was riding his bicycle in Riverside Park when his front tire hit a concrete slab. He fell forward and as a result, became a quadriplegic.

On August 17, plaintiff awoke at 11:00 a.m., had breakfast, and went to work at a bar on 40th Street and Third Avenue in Manhattan at 5:15 p.m. (Affirmation of Monica Kelly, Esq., dated Mar. 11, 2010 [Kelly Aff.], Exh. K, at 12-15). As he worked, he ate pizza and drank a liter of water, and at 10 p.m. and 11:30 p.m., respectively, had two mixed drinks, each containing approximately 3.5 ounces of vodka. (Affirmation of John G. O'Leary, Esq., dated Apr. 20, 2010 [O'Leary Aff.], Exhs. C, M, at 43). At 11:50 p.m. plaintiff left work and went with a friend to a bar on 47th Street between Sixth and Seventh Avenues, where he consumed two 16-ounce beers and pretzel mix. (Id., at 49, 52). His friend saw no indication that plaintiff was intoxicated or impaired. (O'Leary Aff., Exh. V). The two left the bar at 12:20 a.m. [*2]

Plaintiff decided to ride his bicycle home on the bicycle path in Riverside Park. Ambient city light illuminated his way. (Kelly Aff., Exh. M, at 55-56). Past the 79th Street Boat Basin, plaintiff saw a fork in the path. To his right was a tunnel and to his left were large stones which partially obstructed the asphalt path which, some 15 yards beyond, became a dirt path. (Id. at 61-64). Although familiar with the fork in the road and the tunnel, plaintiff had never bicycled on the dirt path but had always gone through the tunnel. (Kelly Aff., Exhs. K, at 96, L, at 90, 114-115). He had only ridden through the Park at night once before, had once walked on the dirt path during the day and had seen others walk and bicycle on the path. (Id., Exh. K, at 39, 44, 46, 47, 54).

That evening, however, plaintiff rode between the stones and onto the dirt path along the water. (Kelly Aff., Exh. K, at 46). Soon thereafter, at approximately 12:45 a.m., his front tire jammed into a ridge in a concrete-like slab, and he was propelled forward, landing on his mouth. (Id. at 66-72). Unable to move, plaintiff lay there for a few hours, until someone discovered him and called 911. An ambulance transported him to the emergency room.

The dirt path where plaintiff fell sits in the middle of pavement and embedded within it are uneven and deteriorated slabs of concrete. (O'Leary Aff., Exh. E). Photographs taken in 1996 show the eroded and uneven concrete. (O'Leary Aff., Exh. L). Christopher Lange, an employee of the New York City Parks and Recreation Department (Parks) and Parks Supervisor at Riverside Park, has seen people sunbathing, walking, and bicycling on the dirt path between 83rd and 91st Streets and between the Hudson River and the Henry Hudson Parkway. (Kelly Aff., Exh. R, at 78-79). According to Lange, a machine is needed to move the large stones in front of the path. (Id. at 105). A green detour sign, measuring two feet by one foot, is posted near the stones, and reads "Riverside Park Promenade closed from 84th Street to 91st Street. Bicyclists must use park pathway through the tunnel east on the highway. Thank you." (Id. at 75-77, 155; O'Leary Aff., Exh. B). At the time of plaintiff's accident, the asphalt leading to the path through the tunnel was painted with white outlines depicting bicyclists. (Id. at 123-26, 146-49).

Riverside Park Administrator, Kenneth Sahl, testified that the stones in front of the path are intended to alert the public that the bicycle path ends, although he knew that the path was used by bicyclists before plaintiff's accident. (Kelly Aff., Exh. V at 35-37, 53). Occasionally, Parks used bright red or bright yellow signs to warn, caution or detour park patrons. (Id. at 46). He recalls moving one of the stones with his foot. (Id. at 83-83).

James Douglas Nash, a Parks employee and consulting project manager for its Capital Division since 2000, became the project manager for the Hudson Riverwalk Project in the summer of 2004. (O'Leary Aff., Exh. G, at 19). He believes that the stones were intended to encourage bicyclists to go through the tunnel, not on the dirt, and he had seen a former Riverside Parks administrator shifting the rocks around without a machine. (Id. at 75-76).

Jeffrey Speich, a Principal Park Supervisor at Riverside Park from January 1997 to October 2004, characterizes the area as dangerous. When he worked there, it was common knowledge that the path was being used by bicyclists and that the stones did not keep them out, and he checked it as often as possible to keep people from using it. He complained to Parks about the need for a more permanent and significant barricade and proper warning signs. (O'Leary Aff., Exh. P).

A Site Inspection Program form dated April 4, 2003 reflects that all of the asphalt along the upper middle path between 79th and 88th Streets and between the River and the Henry Hudson Parkway was deteriorated. Another such form, dated June 4, 2003, reflects that 15 percent of the [*3]concrete on the promenade between 84th and 91st Streets and between Riverside Drive and the Henry Hudson Parkway was cracked, as was 20 percent of the asphalt on the lower path. (O'Leary Aff., Exh. GG).

Elizabeth Cintron, a Parks employee and its director of Manhattan operations since June 2009, fruitlessly searched for incident reports issued and written complaints registered between August 2000 and August 18, 2005 for the location of plaintiff's accident. (Kelly Aff., Exh. X).

II. CONTENTIONS

Defendant City contends that the sole proximate cause of plaintiff's accident was his decision to bicycle, while intoxicated, onto an unpaved and unilluminated path as opposed to the paved and well-lit bicycle path. It relies on plaintiff's medical records and emergency room blood alcohol reading reflecting that plaintiff was intoxicated at the time of his accident by more than twice the legal limit required to support a criminal conviction for driving while intoxicated. (Affirmation of Michael G. Holland, M.D., dated Mar. 9, 2010). To the extent plaintiff argues that the location where he fell was a path within the park and within the purview of New York City Administrative Code § 7-201, City maintains that absent prior written notice of the alleged defective condition that caused plaintiff's accident, the complaint must be dismissed. (Kelly Aff.).

Plaintiff argues that given Parks's knowledge that the path was being used by bicyclists and was not properly fenced off, defendant breached its duty of care and proximately caused his accident. He denies having been intoxicated (O'Leary Aff., Exhs. C, U), and maintains that City received prior written notice of the defect. (O'Leary Aff.).

III. ANALYSIS

A. Standards for summary judgment

The proponent of a motion for summary judgment must establish, prima facie,its entitlement to judgment as a matter of law, and must provide sufficient evidence demonstrating the absence of triable and material factual issues. (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v NY Univ. Med. Ctr., 64 NY2d 851 [1985]; Walden Woods Homeowners Assn. v Friedman, 36 AD3d 691 [2d Dept 2007]). Failure to do so requires that the motion be denied regardless of the sufficiency of the opposing papers. (Id.). The burden of proof then shifts to the opposing party to produce admissible evidence demonstrating the existence of triable and material issues of fact on which its claim rests. (Zuckerman v New York, 49 NY2d 557 [1980]). A defendant moving for summary judgment must submit evidence which negates, prima facie, an essential element of the plaintiff's cause of action. (Rosabella v Metro. Transp. Auth., 23 AD3d 365, 366 [2d Dept 2005]).

B. Municipal liability for negligence

Before a defendant may be held liable for negligence, the plaintiff must demonstrate that: (1) the defendant owed a duty to plaintiff; (2) the defendant breached the duty; and (3) the plaintiff was injured as a result of the breach. (Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]).

1. Duty owed

A municipality owes the public a general duty in its capacity as owner and operator of property open to the public (15 NY Prac, New York Law of Torts § 17:63 [2010] [operation of public park is private corporate activity voluntarily engaged in by government]; Schrempf v State of New York, 66 NY2d 289, 294 [1985]; Miller v State of New York, 62 NY2d 506, 511-512 [1984]), and specifically of a public park (Solomon by Solomon v City of New York, 66 NY2d [*4]1026, 1027 [1985]; Caldwell v Village of Island Park, 304 NY 268, 273 [1952]), and is not immune from liability for a breach of that duty (Vestal v County of Suffolk, 7 AD3d 613, 614 [2d Dept 2004]; Rotz v City of New York, 143 AD2d 301, 304 [1st Dept 1988]). The municipality thus has a duty of reasonable and ordinary care to maintain the park in a reasonably safe condition, although it "is not an insurer of the safety of those who use its facilities." (Garcia v City of New York, 205 AD2d 49 [1st Dept 1994], lv denied, 85 NY2d 810 [1995]). It also has a duty to ensure that an artificially-constructed path in a park is in a safe condition. (81 NY Jur 2d, Parks, Etc. § 102 [2010]).

Moreover, a park operator has a duty to warn against any dangerous condition in the park and to place barriers where needed to protect park-goers. (81 NY Jur 2d, Parks, Etc. § 92 [2010]). Thus, a park authority may be responsible for a failure to warn of a dangerous condition in the park. (81 NY Jur 2d, Parks, Etc. § 102). The fact that the park authority places a sign warning of a dangerous condition does not relieve it of liability if it does not otherwise use reasonable care. (81 NY Jur 2d, Parks, Etc. § 92).

Parks was thus duty-bound to see that the path on which plaintiff fell was in a reasonably safe condition and to warn of any dangerous condition, a proposition it does not challenge. (81 NY Jur 2d, Parks, Etc. § 102 [park authority may be liable for failing to repair defect in park walk]).

On the other hand, as "any person using a public park in the state of New York must exercise for her or his own protection the care which a reasonably prudent and vigilant person would use under similar circumstances to protect himself or herself from injury" (81 NY Jur 2d, Parks, Etc. § 87 [2010]), plaintiff also had a duty to use reasonable care. However, a violation of a park rule or regulation will not bar recovery by a person injured as a result of the park authority's negligence if the violation was not a contributing cause to the injury. (Id.).

2. Duty breached

Plaintiff has satisfactorily established that the broken concrete on which his tire caught constitutes a defect in the path which City had not repaired and for which it may be held liable as the owner and operator of the park. City nevertheless argues that it fulfilled any duty it had to plaintiff by providing a safer alternate route to use, and that plaintiff voluntarily chose to use an unauthorized path. Thus, City contends, in effect, that plaintiff was akin to a trespasser and that it breached no duty to him by failing to maintain the dirt path which he should not have been using.

The mere fact that a plaintiff was trespassing on the defendant's property when injured does not, in and of itself, negate the defendant's duty to maintain the property in a reasonably safe condition. (Scurti v City of New York, 40 NY2d 433 [1976]). Rather, as in Scurti, a trespass is relevant to whether the defendant's actions were reasonable and whether the plaintiff's injury was foreseeable. However, the foreseeability of the plaintiff's presence depends on "the facts of the case including the location of the property in relation to populated areas, its accessibility and whether there have been any prior incidents of trespassing in the area where the injury occurred." (Id. at 442).

Thus, the scope of defendant's duty to plaintiff depends on whether his presence or injury on the dirt path was foreseeable. The fact that plaintiff was on a path which defendant attempted to close does not prove that his use of the path was unforeseeable, given the testimony that park employees were aware that the path was frequently used despite the sign and stones in front of it. [*5]Thus, defendant has not demonstrated that it did not breach its duty to plaintiff. (Compare Elwood v Alpha Sigma Phi, 62 AD3d 1074 [3d Dept 2009], lv denied, 13 NY3d 711 [trespasser's use of area close to gorge was unforeseeable as it was rarely used and no evidence offered that it had been trespassed before plaintiff's accident], with Sirface v County of Erie, 55 AD3d 1401 [4th Dept 2008], lv dism 12 NY3d 797 [2009] [defendant did not establish as matter of law that plaintiff's presence in parking lot outside entrance to park while park was closed to public was not reasonably foreseeable]).

Similarly, the availability of a safer alternate route does not entirely fulfill defendant's duty to plaintiff, as plaintiff's knowledge of the danger posed by the dirt path and the presence of an alternate route constitute factors which may be considered in determining whether plaintiff was comparatively negligent. (Friedman v City of New York, 25 NY2d 764 [1969]; see also 79 NY Jur 2d, Negligence § 109 [2010] ["where a person can choose between two courses of action to follow, one of which exposes him or her to danger and the other of which does not, he or she may be charged with contributory negligence in choosing the dangerous course"]). Thus, in Witherspoon v Columbia Univ., the plaintiff was injured when she slipped while walking across a courtyard notwithstanding the availability of an alternate route. The court held that the availability of the alternate route did not relieve the defendant, as a matter of law, of the duty to maintain the courtyard in a reasonably safe condition. (7 AD3d 702 [2d Dept 2004]). The plaintiff's knowledge of the courtyard's condition and presence of an alternate route were thus factors to be considered in deciding whether the plaintiff was comparatively negligent. (See also Wozniak v 110 South Main St. Land and Dev. Improvement Corp., 61 AD2d 848 [1st Dept 1978] ["when alternate routes are available, a present danger has been perceived and one of the routes may be safer than the other, circumstances are created from which the jury might infer the presence or absence of negligence on the part of the plaintiff"; factual issue is created for jury]; Keefner v City of Albany, 77 AD2d 747 [3d Dept 1980], lv denied 52 NY2d 704 [1981] [selection of one route for another not negligence as matter of law but factual issue for jury]).

Finally, to the extent that defendant argues that it fulfilled its duty by warning plaintiff of the dangerous path by posting a sign and placing stones in front of it, plaintiff raised a triable issue of fact as to the adequacy of the warning by showing that he was able to enter the path through the stones, that others had taken the path, and that defendant was aware that others had done so. (See eg Walter v State, 185 AD2d 536 [3d Dept 1992] [finding that fence and warning signs erected to keep people out of park area were insufficient; fence was not adequate barrier to access and was easily traversed, posted signs were ambiguous, and well-worn path put defendant on notice that sign and fence were being ignored by park users and thus insufficient to prevent access to path]).

To the extent City maintains that plaintiff's intoxication solely caused the accident, and that it had no written notice of the defect, those contentions are addressed infra, III.B.3).

3. Proximate cause

In order to establish that the municipality's breach of its duty of care proximately caused a plaintiff's injury, the plaintiff must prove that the municipality's negligence was a "substantial cause" of the events causing the injury. (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). While the issue of proximate cause is ordinarily one for a jury to determine, "where only one conclusion may be drawn from the established facts . . . the question of legal cause may [*6]be decided as a matter of law." (Id.).

Morever, when an intervening or superseding act also contributes to the plaintiff's injuries, "liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence." (Id.). In order to establish that a plaintiff was the sole proximate cause of his or her injuries, the defendants must show that the plaintiff engaged in reckless, unforeseeable or extraordinary conduct and that such conduct constituted a superseding cause of the accident. (Alvarez v Colgate Scaffolding & Equip. Corp., 68 AD3d 583 [1st Dept 2009]). The issue is whether a plaintiff has created a dangerous risk of injury. (Osorio v Thomas Balsley Assocs., 69 AD3d 402 [1st Dept 2010]).

In each of the following cases, a plaintiff was deemed the sole proximate cause of his or her injuries: (1)swimmers, with prior experience in swimming and diving and familiarity with a particular pool or water source or who were warned about it, who nonetheless dove into the water and were injured (Olsen v Town of Richfield, 81 NY2d 1024, 1026 [1993]; Boltax v Joy Day Camp, 67 NY2d 617 [1986]; Nolasco v Splish Splash at Adventureland, Inc., 74 AD3d 1303 [2d Dept 2010]);(2)a plaintiff who climbed onto a ballet stretching bar and fell (Osorio, 69 AD3d at 403);

(3)a tenant who re-entered her apartment to try to extinguish a fire after unsuccessfully trying to extinguish it twice before (Holliman v New York City Housing Auth., 68 AD3d 515 [1st Dept 2009]);

(4)those injured while working on vehicles while the engines were running (Isselbacher v Larry Lopez Truck Equip. Mfg. Co., 66 AD3d 840 [2d Dept 2009]; Bruno v Thermo King Corp., 66 AD3d 727 [2d Dept 2009]);

(5)an infant plaintiff who jumped up and swung from pipes supporting a basketball backboard (Mastropolo v Goshen Cent. School Dist., 40 AD3d 1053 [2d Dept 2007]);

(6)a boater who, despite his familiarity with the area, crashed into a mooring field while driving the boat intoxicated and at an excessive speed (Barry v Chelsea Yacht Club of Chelsea on Hudson, 15 AD3d 323 [2d Dept 2005]);

(7)a person who, while a train was passing by her, walked near the middle of the track and squatted down (Wadhwa v Long Island Rail Road, 13 AD3d 615 [2d Dept 2004]);

(8)plaintiffs who walked around a safety gate in the down position at a railroad junction and crossed tracks directly behind an eastbound train without checking to see if westbound train was approaching (Mooney v Long Island Rail Road, 305 AD2d 560 [2d Dept 2003]);

(9)a motorcycle rider, familiar with the road, who turned his head away from the [*7]road to talk to the other rider right before a curve (Parmeter v Bedard, 295 AD2d 779 [2d Dept 2002], lv denied, 98 NY2d 614);

(10)a building occupant who attempted to open an inoperable window after previously trying to open it without success (Turner v City of New York, 290 AD2d 336 [1st Dept 2002]);

(11)a camper who climbed a 30-foot water tower at night (Gustin ex rel. Gustin v Assoc. of Camps Farthest Out, Inc., 267 AD2d 1001 [4th Dept 1999]); and

(12)a runner, familiar with the area and the presence of a cliff, who fell while running at dark on the cliff's edge (Plate v City of Rochester, 217 AD2d 984 [4th Dept 1995]).

Thus, one's familiarity with an area or situation, the conspicuousness of a risk, and knowledge of the risk are all factors to be considered in determining whether a plaintiff was the sole proximate cause of his or her injury, a determination which depends on whether the plaintiff was aware of the danger and chose to disregard it. (Skibinski v Salvation Army, 307 AD2d 427 [3d Dept 2003]).

Here, the evidence establishes that plaintiff had never before ridden his bicycle in the Park at night or on the dirt path, and there is no indication that he was aware of the risk he took by riding on the path. Consequently, there exist triable issues as to whether the risk was obvious given the sign and the stones. (See eg Ziecker v Town of Orchard Park, 75 NY2d 761 [1989] [plaintiff's conduct was not superseding event relieving defendant of liability as evidence indicated that plaintiff was not aware of depth of water in lake before he dove in]; Jodko v City of New York, 163 AD2d 275 [2d Dept 1990] [summary judgment denied as no evidence that plaintiff knew of depth of water in pool before diving or that reasonable person in plaintiff's position should have known depth]; Skibinski, 307 AD2d at 428 [plaintiff's action of stepping out of vehicle onto parking lot was not sole proximate cause of injury as icy condition of lot was not readily apparent]).

While a factfinder may reasonably determine that plaintiff's decision to ride his bicycle on the dirt path was reckless, unforeseeable or extraordinary, that determination may not be reached as a matter of law given the evidence that others had walked and ridden on it. (See eg Butler v Seitelman, 90 NY2d 987 [1997] [plaintiff died after using rowboat without life-saving equipment; the facts he was poor swimmer and intoxicated and exercised poor judgment do not constitute unforeseeable or reckless acts]; Alvarez, 68 AD3d at 585 [plaintiff's action of sitting on sidewalk bridge cross-brace which then fell was not sole proximate cause; plaintiff testified that he had seen numerous people and children sitting and climbing on cross-brace]; Nash v Fitzgerald, 14 AD3d 850 [3d Dept 2005] [plaintiff's action of walking on snow before slipping on ice was not unforeseeable or extraordinary as he was wearing proper footwear and did not see ice underneath snow]; Canela v Audobon Gardens Realty Corp., 304 AD2d 702 [2d Dept 2003], lv dism 2 NY3d 759 [2004] [plaintiff's conduct in sitting on parapet wall while intoxicated and falling asleep, resulting in him rolling off wall, was not unforeseeable or extraordinary]).

Finally, although it was plaintiff's decision to proceed on the path, at night and after consuming alcohol, thereby creating an opportunity for his injury, it was the dangerous condition on the path that actually caused his injury, and no evidence was offered that he rode the bicycle [*8]in an unusual or reckless manner or that he strayed from the path. (See Reed v City of Syracuse, 309 AD2d 1195 [4th Dept 2003] [while plaintiff was intoxicated while driving and had no license, no evidence offered that he was "doing anything other than proceeding through a green light in conformance with the traffic laws at the time of the accident"]).

And even if plaintiff was legally intoxicated, he was apparently able to navigate his way from 47th Street to the Park and through the Park to the site of his accident. Similarly, in Torelli v City of New York, the court rejected the defendant's argument that the plaintiff's intoxication was the sole proximate cause of his accident absent evidence that his intoxication rendered him "completely insensible or prevented him from understanding or responding to traffic signs or signals." As here, the plaintiff's successful[] navigat[ion of] his way from Queens to the Bronx, which necessarily involved traversing complex bridges, highway interchanges and streets known to be frequently burdened with various construction obstructions, could permit the jury to reasonably conclude that [he] possessed a sufficient ability to respond to relevant traffic signs, albeit perhaps not with optimum efficacy, and that the failure of [defendant] to properly maintain such signs . . . which constituted a danger to motorists, was a substantial factor in bringing about the accident and was a proximate cause thereof.

(176 AD2d 119 [1st Dept 1991], lv denied 79 NY2d 754 [1992]).

Consequently, defendant failed to establish that plaintiff's intoxication, in and of itself, was the sole cause of his accident. (See Soto v New York City Transit Auth., 6 NY3d 487 [2006] [plaintiff's act of running along train track while intoxicated was not so egregious or unforeseeable as to be sole proximate cause of accident]; Humphrey v State of New York, 60 NY2d 742 [1983] [fact that plaintiff was impaired at time of accident on road did not relieve defendant's negligence regarding defects on road]; Samuel v Simone Dev. Co., 13 AD3d 112 [1st Dept 2004] [as plaintiff was given unsecured, wobbly ladder and no safety devices, his drug use could not have been sole proximate cause of fall]; Reed, 309 AD2d at 1195 [plaintiff's driving while intoxicated and unlicensed were factors to be considered in determining whether he was comparatively negligent]).

For all of these reasons, defendant failed to demonstrate, prima facie, and as a matter of law, that plaintiff's actions were the sole proximate cause of his accident. Rather, plaintiff's role in causing his accident is more properly addressed in the context of comparative negligence. (See eg Butler; 90 NY2d at 989] ["[t]hat the decedent was a poor swimmer, that he may have consumed some beer before the accident and that he may have showed poor judgment in taking out the rowboat without the necessary safety equipment are all relevant to determining the decedent's comparative culpability"]).

C. Prior written notice

New York City Administrative Code § 7-201(c)(2) (the "Pothole Law") provides that:

No civil action shall be maintained against the city for . . . injury to a person . . .

sustained in consequence of any street . . . sidewalk or crosswalk, or any part or portionof any of the foregoing including any encumbrances thereon or attachments thereto, 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 there was written acknowledgment from the city of the defective, unsafe, or [*9]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 reasonable safe.

"Prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City." (Katz v City of New York, 87 NY2d 241 [1995]). Constructive knowledge of a defect does not satisfy the statute. (Amabile v City of Buffalo, 93 NY2d 471 [1999]; Campisi v Bronx Water & Sewer Serv., Inc., 1 AD3d 166, 167 [1st Dept 2003]). Areas governed by this provision include a road or path within a park. (Admin Code § 7-201[c][1][a]). In section 7-201(c)(1)(b) a path is deemed a "sidewalk." A written statement showing that the City agency responsible for repairing a condition had first-hand knowledge both of the existence and the dangerous nature of the condition constitutes an "acknowledgment" sufficient to satisfy the Pothole Law. (Bruni v City of New York, 2 NY3d 319, 325 [2004]).

Here, the path taken by plaintiff is clearly within the purview of the Pothole Law as a path within a park, which defendant is responsible for maintaining, and the Site Inspection Program forms constitute written acknowledgments by defendant of the existence and the dangerous nature of the condition. (Ostermeier v Victorian House, Inc., 126 Misc 2d 46 [Sup Ct, Queens County 1984] [inspection report constituted prior written notice as it clearly identified location and condition on sidewalk]).

IV. CONCLUSION

Accordingly, it is hereby

ORDERED, that defendant's motion for summary judgment is denied.

This constitutes the decision and order of the court.

_______________________________

Barbara Jaffe, JSC

DATED:August 11, 2010

New York, New York