[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] HON. CYNTHIA KERN, J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: _____________________
Papers Numbered Notice of Motion and Affidavits Annexed ............ 1 Answering Affidavits and Cross Motion .............. 2 Replying Affidavits ................................ Exhibits ........................................... 3
Plaintiff commenced the instant action to recover damages for personal injuries sustained when he tripped and fell in a tree well on March 30, 2007 in front of 2657 Frederick Douglass Boulevard. Defendant City of New York (the "City") now moves for summary judgment dismissing the complaint on the ground that it did not have prior written notice of the condition. For the reasons set forth below, the City's motion for summary judgment dismissing the complaint is denied.
The first issue the court must resolve is whether the City is required to have prior written notice pursuant to § 7-201(c)(2) of the Administrative Code of the City of New York when a plaintiff's accident occurs in a tree well. Plaintiff argues that prior written notice is not required for accidents in tree wells, relying on the Court of Appeals holding in Vucetovic v. Epsom Downs, Inc., 10 N.Y.3d 517 (2008). In Vucetovic, the Court of Appeals held that a tree well is not part of the sidewalk for purposes of liability under § 7-210 of the Administrative Code, which states that the abutting property owner rather than the City is responsible for the maintenance of sidewalks. However, the Court of Appeals did not address the issue of whether prior written notice is required to maintain an action against the City for failing to maintain a tree well. Administrative Code § 7-201(c)(2), which is the section of the code containing the written notice requirement, specifically states that prior written notice is required for defects on a sidewalk or "encumbrances thereon or attachments thereto." This language is much broader than the language in § 7-210 as it is not limited solely to sidewalks. Based on the broader language of § 7-201(c)(2), another court has specifically found that written notice is required for injuries that occur in tree wells and that Vucetovic did not overrule previous holdings requiring prior written notice in tree well accident cases. See Tucker v City of New York, Index No. 101463/04 (Sup. Ct. New York County, 2009). This court agrees with the foregoing analysis and finds that prior written notice is required when the plaintiff's injuries occur in a tree well.
However, the City is not entitled to summary judgment as there are disputed issues of fact as to whether the City received prior written notice of the allegedly defective condition. § 7-201(c)(2) of the Administrative Code provides as follows:
No civil action shall be maintained against the city for damage . . . in consequence of any sidewalk or crosswalk, or any part or portion of 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 where there was previous injury to person or property as a result of the existence of the
defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency.
In the instant case, there are disputed factual issues as to whether the city received prior written notice of the empty tree well through a Big Apple map. "It is well settled that Big Apple maps filed with the New York City Department of Transportation serve as prior written notice to the city of the defective conditions indicated on the maps." Weinreb v. City of New York, 193 A.D.2d 596, 598 (2d Dept. 1993); see also Acevedo v. New York, 128 A.D.2d 488 (2d. Dept. 1987). However, "[w]here there are factual disputes regarding the precise location of the defect that allegedly caused a plaintiff's fall, and whether the alleged defect is designated on the map, the question should be resolved by a jury." Quinn v. City of New York, 305 A.D.2d 570 (2d Dept. 2003).
In the present case, there is a Big Apple map on file with the New York City Department of Transportation that shows what appears to be a circle (which would represent a hole or depression) at 2657 Frederick Douglass Boulevard at the location where plaintiff claims he was injured. Although the map does not specifically indicate that there is a defect in the tree well itself, the map is sufficient to create a factual issue as to whether it indicates a defect in the area where plaintiff allegedly was injured.
There is also a factual issue as to whether the City had prior written notice of a previous injury as a result of the same defective condition. The written notice requirement can be satisfied by a city agency receiving prior written notice of previous injury to a person as a result of the condition. Administrative Code § 7-201 (b)(2). The courts have held that a written notice of claim can satisfy the prior written notice requirement of a previous injury. See Bruni v. City of New York, 2 N.Y.3d 319, 324 (2004); see also Massey v. City of Cohoes, 35 A.D.3d 996 (3rd Dept. 2006). In the instant case, plaintiff has provided a notice of claim submitted by Patricia Ford in 2002 for injuries she incurred as a result of a fall in front of 2655 8th Avenue as a result of a defective condition. The notice of claim states that she fell in a large hole near the curb in front of a Chinese restaurant. Although the address in the notice of claim is 2655 and plaintiff claims he fell in front of 2657, the location described in the notice of claim is the same location described by plaintiff-a hole near the curb in front of a Chinese restaurant. Under these circumstances, it is appropriate for the jury to make the determination as to whether the location described in the notice of claim is the same location as the location where plaintiff was injured.
Accordingly, defendants' motion for summary judgment dismissing the complaint is denied. This constitutes the decision and order of the court.