Wade Clark Mulcahy LLP

In a recent legal battle, the First Department faced the appeal of DeGraffe v. City of New York (2024 N.Y. Slip Op. 00265), where the plaintiff sought to overturn the trial court's grant of summary judgment in favor of the defendant city. DeGraffe claimed injuries resulting from a trip and fall incident within a city park, attributing the mishap to a defective dent in a concrete walkway. However, the trial court sided with the City of New York, contending that they lacked prior written notice of the alleged defect. Adding weight to their defense, the City provided inspection records indicating that all park walkways had been deemed "acceptable" in the two years leading up to DeGraffe's fall.

On appeal, plaintiff argued that a triable issue of fact existed to make summary judgment in favor of the defendant unwarranted. Specifically, plaintiff argued that the existence of inspection and work documents raised the possibility that the City did receive prior written notice of the defect. Plaintiff pointed to, first, a prior inspection form which identified various park structures that required caulking work, and second, a corresponding work order which indicated that 5 repairs had been made throughout the park, though the work order did not specify the nature of repairs made. The Court rejected plaintiff’s argument and held that these records were insufficient to constitute “prior written notice of the defect that actually caused plaintiff’s injury,” which is the ultimate requirement for a finding of prior written notice on a municipality.

This case importantly establishes that in order to impute liability for a defective condition on a municipality, the prior written notice must relate to the exact same defective condition which plaintiff claims caused their injuries. Mere notice to the municipality that repair work generally must be done, without specifying the exact defect, will not suffice to hold the municipality liable.