Notice of Claim Sufficiently Alleged Playground Equipment’s Defective Design

Under New York law, a plaintiff suing a municipality (including the City of New York) must first file what is called a “Notice of Claim.” The particulars of the Notice of Claim requirement are spelled out in General Municipal Law § 50-e.

In Jimenez v. City of New York, decided May 15, 2014, the Appellate Division, First Department explained why plaintiff’s notice of claim was sufficient to place defendants on notice of the basis for his claim alleging defective design of a piece of playground equipment:

While the notice of claim may not have expressly stated that the flat, circular, spinning playground disc from which the infant fell had a defective design, the complaint alleged that the infant plaintiff’s injury was caused by “the dangerous, defective and unsafe condition” posed by the disc, “including but not limited to lack of supervision, lack of control, lack of guidance and lack of instruction” (emphasis added). This was sufficient to place defendant on notice that part of plaintiffs’ theory was that the disc itself was defective (see e.g. Jackson v New York City Tr. Auth., 30 AD3d 289, 291 [1st Dept 2006]). In addition, that plaintiffs were alleging that the disc was defective could be inferred from the allegation that the mere presence of excessive speed caused plaintiff to be ejected from it. This contrasts with cases such as Rodriguez v Board of Educ. of the City of N.Y., 107 AD3d 651 [1st Dept 2013], and Chieffet v New York City Tr. Auth., 10 AD3d 526, 527 [1st Dept 2004], where the theories of liability introduced by the plaintiffs were wholly independent of the theories alleged in the notices of claim.

As to the merits, defendant “failed to satisfy its prima facie burden of establishing its entitlement to summary judgment, because it did not assert that it did not create the unsafe condition by installing an unreasonably dangerous piece of equipment.” Even if it had, plaintiffs’ expert’s affidavit created an issue of fact.

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