No Explicit Denial of Lack of Prior Written Notice Results in Denial of Summary Judgment to City in Trip/Fall Case

In Henderson v. City of New York, plaintiff alleged that she tripped and fell on a manhole in a crosswalk at the intersection of Second Avenue and 74th Street in Manhattan. She claimed, in her notice of claim, that she fell due to a “raised, cracked, depressed, missing, broken and/or mis-leveled pavement and/or manhole cover (street hardware) located within” the crosswalk.

The City moved to dismiss under CPLR 3211(a)(7) and for summary judgment, arguing that it did not have “prior written notice” of the alleged defect as required by section 7-201(c)(2) of the Administrative Code of the City of New York.

Initially, the court denied the City’s motion to dismiss under CPLR 3211(a)(7), noting that plaintiff”alleges that the City had prior written notice of the alleged defect or, in the alternative, that the City created the defect.”

Next, the court denied the City’s summary judgment motion, pointing to a critical evidentiary deficiency:

In moving for summary judgment on plaintiffs claim that it had prior written notice of the alleged defect or created the condition, the City relies on documents produced as a result of searches by the DOT and the DEP of their respective records to establish that it had no prior written notice of the allegedly dangerous condition. As noted above, [Omar] Codling [of the Office of Litigation Services of the New York City Department of Transportation] stated in an affidavit that he searched the DOT’s records for permits, applications for permits, corrective action requests, notices of violation, inspections, maintenance and repair orders, sidewalk violations, contracts, complaints, resurfacing/milling records and Big Apple Maps for the area of Second Avenue between 73rd and 74th Streets for a two-year period preceding, and including, the date of the incident.

Conspicuously absent from Codling’s December 27, 2013 affidavit, however, is a representation that the records produced by the DOT established that the City did not have prior written notice of the allegedly dangerous condition. Nor did Codling specifically testify at his deposition that the City did not receive prior written notice of the alleged defect. Therefore, the DOT records do not establish the City’s prima facie entitlement to summary judgment.

Although the City also relies upon [Department of Environmental Protection] records, it failed to submit any affidavit from any City [or DEP] official or employee demonstrating that a search of the appropriate [DEP] records had been done and that there was no prior written notice of the alleged dangerous condition that caused the plaintiff’s accident. Nor was there any deposition testimony by [Edwin] Tardy, the DEP’ s witness, or any other witness for the City or the DEP, which indicated that a search of the DEP records had been performed without locating any evidence of prior written notice. In fact, Tardy testified that he did not search for the records and that he knew neither who did nor whether the searcher worked for the DEP. [T]he records allegedly located pursuant to a search conducted by the DEP were accompanied by nothing other than two unsworn memoranda from the DEP’s Records Retention Unit setting forth the parameters of the search. Thus, the City failed to make a prima facie showing that it did not receive prior written notice of the allegedly dangerous condition.

[The city also] failed to establish that the alleged defect was not created by its own affirmative negligence.