Opinion
Index No. 503954/19
04-22-2024
ANTHONY PEREZ, Plaintiff, v. THE CITY OF NEW YORK, Defendants.
Unpublished Opinion
DECISION/ORDER
PETER P. SWEENEY, J.S.C.
During the trial of this action, the defendant, the City of New York ("the City") moved for a directed verdict at the close of plaintiffs case. The Court reserved decision. After the jury returned a verdict in plaintiffs favor, the City moved to set aside the verdict. Both motions are granted for the reasons set forth below.
Background;
The plaintiff, Anthony Perez, commenced this action to recover damages for personal injuries that resulted from a trip and fall accident that occurred on August 26, 2018, on the roadway of 7th Street, between 2nd and 3rd Avenue, Brooklyn, New York. The plaintiff maintained that the cause of his accident was a pothole located approximately 20 feet from the intersection of 7th Street and 2nd Avenue. The City maintained that it did not have prior written notice of the existence of the pothole.
The issue of liability was tried before a jury from February 6, 2024 to February 9, 2024. During the trial, the plaintiff introduced evidence that the City obtained written notice of a roadway defect on August 21, 2017, when it received a citizen's complaint from Barbara Kelly through its 311 App. The notice informed the City that there was a roadway defect located in front of a building located at 186 - 7th St. Brooklyn, New York, which is approximately 500 feet away from where the plaintiff claims the accident occurred.
The plaintiff called Ms. Kelly as a witness during the trial. Ms. Kelly testified that on August 21,2017, using her I-phone, she emailed the citizen's complaint to the City through the City's 311 App. She further testified that she took photographs of the condition that was the subject matter of the complaint and emailed them to the City along with the complaint. Ms. Kelly testified that she no longer had copies of these photographs. When Ms. Kelly was shown a photograph of the pothole that the plaintiff claims caused his accident that had been received in evidence, she testified that the photograph depicted the same defect shown in the photographs she sent to the City.
The City called Philip Wu as a witness, who is employed by the City in the Office of Technology and Intervention. Mr. Wu searched the City's electronic records and acknowledged that the City received several photographs from Ms. Kelly along with her citizen's complaint. Mr. Wu produced these photographs, and they were received in evidence. Parenthetically, these photographs depict a condition that is entirely different for the condition that the plaintiff claims caused his accident.
At the close of plaintiff's case, the attorney for the City moved for a directed verdict pursuant to CPLR 4401, arguing that the plaintiff failed to make out a prima facie case that the City had prior written notice of pothole that plaintiff claims caused his accident. The court reserved decision and put the question of prior written notice to the jury.
The jury returned a verdict unanimously finding that the City1 had prior written notice. The jury went on to find that the City's negligence was the sole proximate cause of the accident.
After the verdict, the City moved to set aside the verdict pursuant to CPLR 4404, arguing the evidence did not support a finding that the City had prior written notice of the pothole. The court reserved decision. On February 20, 2024, the matter appeared before the undersigned for final oral argument.
Discussion.
Pursuant to the New York City Administrative Code § 7-201(c)(2), the City's prior written notice law, the City may not be subjected to liability' for injuries arising from a defective roadway condition unless it has received prior written notice of the defect, or an exception to the written notice requirement applies (see Yarborough v. City of New York. 10 N.Y.3d 726, 728, 853 N.Y.S.2d 261,882 N.E.2d 873; Bartels v. City of New York, 125 A.D.3d 583, 585, 6 N.Y.S.3d 60). The only recognized exceptions to the prior written notice requirement are where the defect or hazard results from an "affirmative act of negligence" by the municipality, or a special use by the municipality that conferred a special benefit upon it (Methal v. City of New York, 116 A.D.3d 743, 743, 984 N.Y.S.2d 71; see Carlucci v. Village of Scarsdale, 104 A.D.3d 797, 798. 961 N.Y.S.2d 318). The affirmative negligence exception is limited to acts by the municipality that immediately result in a dangerous condition (see Oboler v. City of New York, 8 N.Y.3d 888, 889-890, 832 N.Y.S.2d 871.864 N.E.2d 1270). Since the plaintiff failed to introduce any evidence that the City caused or created the alleged defect through an affirmative act of negligence, or that the defect that caused the accident resulted from a special use by the City, these exceptions do not apply.
A motion pursuant to CPLR 4401, made at the close of the plaintiffs case, for judgment as a matter of law dismissing a complaint may be granted when the trial court determines that, upon the evidence presented, there is "no rational process by which the jury could find in favor of the nonmoving party" (Tapia v. Datlco, Inc., 32 A.D.3d 842, 844, 821 N.Y.S.2d 124; see Szczerbiak v. Pilot. 90 N.Y.2d 553, 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346). "In considering such a motion, the trial court must afford the party opposing the motion every' inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Tapia v. Dattco, Inc., 32 A.D.3d at 844, 821 N.Y.S.2d 124 [internal quotation marks omitted]; see Szczerbiak v. Pilot. 90 N.Y.2d at 556, 664 N.Y.S.2d 252, 686 N.E.2d 1346). In deciding such a motion, the evidence must be viewed in the light most favorable to the plaintiff Szcerbiak, supra.
To set aside a jury verdict and to be awarded judgment as a matter of law pursuant to CPLR 4404(a), a defendant has the burden of showing that, upon viewing the evidence in the light most favorable to the plaintiff, "there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [jurors] to the conclusion reached by the jury on the basis of the evidence presented at trial" (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; see Lang v. Newman, 12 N.Y.3d 868, 870, 883 N.Y.S.2d 153, 910 N.E.2d 982).
Here, viewing the evidence in the light most favorable to the plaintiff and affording the plaintiff every inference which may properly be drawn from the facts presented, there is no rational process by which the jury could have found in favor of the plaintiff on the issue prior written notice.
First, the only evidence introduced at trial on the issue of whether the City received prior written notice was Ms. Kelly's citizen complaint. The citizen complaint informed the City of a defective roadway condition that was located approximately 500 feet from the one that the plaintiff claims caused his accident It is well settled that prior written notice of one defect in the general area of an accident is insufficient to constitute notice of an entirely different defect which caused the accident (see Espinosa v JMG Realty Corp., 53 A.D.3d 408, 861 N.Y.S.2d 333). The law requires that notice must be fairly specific as to the nature and location of the defect (Dalton v Saratoga Springs, 12 A.D.3d 899, 784 N.Y.S.2d 702). Indeed, even notice of defects that are a short distance from the defect that caused a plaintiff's injuries is not sufficient where, as here, the noticed defect was isolated from and not a part of the allegedly defective condition complained of (Brill v New York, 305 A.D.2d 525, 759 N.Y.S.2d 346, rev'd on other grounds, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 (''Big Apple" map indicating defects in sidewalk adjacent to area of accident not sufficient to provide notice of defect at accident location); Curd v New York, 209 A.D.2d 574, 619 N.Y.S.2d 98; see Marotta v Massry, 279 A.D.2d 877, 719 N.Y.S.2d 737; Jones by Jones v Brookhaven, 227 A.D.2d 530, 642 N.Y.S.2d 708). Thus, Ms. Kelly's citizen complaint was not only woefully insufficient to demonstrate that the City had prior written notice of the pothole the plaintiff caused his accident, it was also insufficient to create a triable issue of fact as to prior written notice (see Pallotta v. City of New York 121 A.D.3d 656,657, 993 N.Y.S.2d 726; Marshall v. City of New York, 52 A.D.3d 586, 587, 861 N.Y.S.2d 77; cf Bradley v. City of New York, 38 A.D.3d 581, 582, 832 N.Y.S.2d 257).
Even if the jury credited Ms. Kelly's testimony that the photographs she sent to the City depicted the same condition that the plaintiff claims caused this accident, and that such photographs were different from the photographs produced by Mr. Wu, the plaintiff failed to introduce any evidence the photographs provided the City with written notice of the location of the defective condition. As stated above, Ms. Kelly's citizen's complaint informed the City of a defective roadway condition that was approximately 500 feet from where the plaintiff claims he fell. For this reason, were insufficient to demonstrate prior written notice.
For all the above reasons, it is hereby
ORDERED that the City's motion pursuant to CPLR. 4401, which was made at the close of plaintiff's case, for a directed verdict in its favor and for judgment as a matter of law is GRANTED; and it is further
ORDERED, and the City's motion pursuant to CPLR 4404 to set aside the verdict and for judgment as a matter of law is also GRANTED, and the action is dismissed.
This constitutes the decision and order of the Court.