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No Written Notice = No Dice for Plaintiffs in NYC (NY)

August 23, 2018

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It has long been held pursuant to the New York City Administrative Code that the City of New York cannot be found liable for accidents occurring within it due to dangerous conditions unless the City had prior written notice of the existence of the condition. The exceptions to this being where the City created a defect or the defect was caused by special use of that benefited the City.
On August 22, 2018, the Appellate Division, Second Department upheld this stringent standard to obtain a recovery from the City for potholes within the five boroughs. In <em><a href="">Allen v. City</a></em>, plaintiff was injured when he fell off of his bike after riding over a pothole in a City owned and operate street. Defendant City moved for summary judgment based on the fact that there was no prior written notice of the condition and none of the exceptions applied. The lower Court denied the City’s motion and found that a reference to a raised or elevated area on a “Big Apple Map,” constitutes prior written notice.
The Second Department unanimously reversed the lower Court’s decision and found that the City showed that it did not have prior written notice and that a “Big Apple Map” is insufficient to impose notice onto the City.
In <em><a href="">Budoff v. City</a></em>, plaintiff was injured when he fell off of his bike due to a pothole present in a designated bike lane on a City owned and operated street in Brooklyn. The lower Court granted the City’s motion and plaintiff moved to reargue. The lower Court granted reargument and upheld its decision, plaintiff appealed. The Court, which normally will not hear appeals on reargument, decided it was within its discretion to do so here as the underlying Order was upheld upon reargument.
The Court unanimously upheld the lower Court’s determination that there was no prior written notice of the condition. IT also found plaintiff’s argument that the City benefited from the special use of the bike lane as it “attracted tourism” to be unveiling and insufficient to impose liability onto the City.
The two decisions discussed above, while somewhat different, show how stringent the Second Department is about finding liability against the City. It is decisions like this that push plaintiffs to try to impose liability onto anyone <u>but</u> the City if possible as the burden in showing the City’s negligence is high, and often impossible to meet. In our practice, we see many cases involving defective sidewalk conditions and more often than not, plaintiffs go through great lengths to try to impose liability onto anyone they can find as to make their chances of recovery greater.  Thanks to Dana Purcaro for her contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.

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