Opinion
104905/08
08-09-2011
Susan Santevecchi, Plaintiff, v. The City of New York, Defendant.
, J.
The following papers numbered 1 to 3 were marked fully submitted the 1st day of June, 2011.
Papers Numbered
Notice of Motion with Exhibits (dated March 25, 2011)..............................1
Affirmation in Opposition with Exhibits (dated April 14, 2011)..............................2
Affirmation in Reply and in Support of Motion (dated March 31, 2011)..............................3
Upon the foregoing papers, the motion for summary judgment of defendant The City of New York (hereafter the City) is granted and the complaint is dismissed.
In this personal injury action, plaintiff alleges that on July 5, 2008, she was caused to slip/trip and fall in front of premises located at 45 Bay Street, Staten Island, due to a broken, cracked, uneven, depressed and unattended tree well (see Notice of Claim, Defendant's Exhibit A).
In support of its motion, inter alia, to dismiss the complaint, the City asserts that plaintiff failed to prove compliance with New York City's "Pothole Law" (Administrative Code of the City of New York § 7-201[2]), which requires prior written notice as a condition precedent to maintaining an action against the City for damage to property or injury to person or death sustained in consequence of any street, highway, bridge ... sidewalk ... or any part [thereof] including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed (see e.g., Giganti v Town of Hempstead, 186 AD2d 627). In further support, the City has annexed the affidavit of Borough Forester John Kilcullen, who conducted a search in the Forestry Management System for the period of five years up to and including the date of plaintiff's accident, and found that no complaints, work orders, or other activity on file pertaining to the tree well in question (see Defendant's Exhibit I). As a result, the City argues that plaintiff's failure to comply with the above ordinance dictates that her cause of action against the City be dismissed.
In opposition to the motion, plaintiff asserts that since the City failed to plead plaintiff's non-compliance with the prior written notice provision as an affirmative defense, it is precluded from asserting same now or on appeal (see Fusco v City of New York, 71 AD3d 1083). Otherwise, plaintiff claims that she will be prejudiced by the loss of an opportunity to present evidence rebutting the City's allegation on a factual basis (cf. Shepardson v Town of Schodak, 83 NY2d 894, 895-896).
Plaintiff further asserts that the motion should be denied because the Court of Appeals has specifically held that tree wells are not part of the sidewalk for purposes of section 7-210 of the City's Administrative Code and, therefore, the prior written notice requirement, even if properly pleaded, is inapplicable to this case (see Vucetovic v Epsom Downs, Inc., 10 NY3d 517).
The motion is granted.
Under settled law, prior written notice of, e.g., a street or sidewalk defect, is a condition precedent which a plaintiff is required to plead and prove in order to maintain a personal injury action against the City (see Poirier v City of Schenectady, 85 NY2d 310, 314). Morever, while a plaintiff is chargeable with knowledge of both requirements (see Fullerton v City of Schenectady, 285 App Div 545, 546, affd 309 NY 701), the City bears no burden of proof on the issue (id.). Accordingly, the City's failure to plead the lack of prior written notice as an affirmative defense does not operate as a waiver of the statutory requirement (see Cipriano v City of New York, 96 AD2d 817, 818).
Plaintiff's reliance upon Fusco v City of New York (71 AD3d 1083, supra) to support her position that the City's failure to plead the lack of notice precludes its assertion in support of dismissal is misplaced. In Fusco, the Second Department declined to consider the City's allegation of a lack of prior written notice when raised for the first time on appeal. Plaintiff-respondent had submitted no appellate brief and, therefore, according to the Court, did not ha[ve] an opportunity to respond to [the City's new] contention (id. at 1084). Hence, the omission was effectively deemed to have been waived.
Also misplaced is plaintiff's reliance on Shepardson v Town of Schodak (83 NY2d 894, supra), a negligence case in which the Town erroneously pleaded Town Law § 65-a (requiring prior written or constructive notice of an allegedly dangerous condition) rather than that section of theSchodak Town Code (§ 154-1) which required prior written notice. Insofar as it appears, the Town then sat silently for two years before raising the Schodak ordinance on a post-trial motion to dismiss the complaint. Under these limited circumstances, the Court of Appeals held that the Town's failure to raise the ordinance until both sides had rested deprived plaintiff of the opportunity to demonstrate that the Town had received written notice of the purported defect (id. at 896).Contrary to the facts reported in either of the prior cases, plaintiff at bar alleged prior written notice in her Verified Complaint and, therefore, cannot be seen as having been prejudiced by the City's failure to defensively plead the lack of same in its answer. Nor has plaintiff sought to avoid the prior written notice requirement by claiming either of the two recognized exceptions to the prior written notice requirement (see Oobler v City of New York, 8 NY3d 888; Amabile v City of Buffalo, 93 NY2d 471; Alvino v City of New York, 49 AD3d 676).
Finally, the Court is mindful of the fact that the Court of Appeals has recently held in Vucetovic v Epsom Downs, Inc. (10 NY3d 517, supra) that a tree well is not a part of the sidewalk for purposes of New York City Administrative Code § 7-210. However, the Court in that case was never called upon to address the further issue of whether prior written notice of a purportedly defective tree well was still required under New York City Administrative Code § 7-201(2). In addition, the Court in Vucetovic noted in reaching its decision that the City Council's failure to alter other sections of the Administrative Code which employed the same or similar language to Section 7-210 regarding, e.g., sidewalk maintenance, constituted at least some evidence of a lack of legislative intent to shift liability for accidents involving tree wells exclusively to abutting landowners (id. at 521-522). Inasmuch as the Court's ruling effectively returned liability for injuries attributable to defective tree wells to the City without eliminating the necessity of prior written notice in Administrative Code § 7-201(c), it is both reasonable and consistent with Vucetovic to conclude that no change in the law regarding prior written notice was contemplated. In fact, both the First and Second Departments have recently ruled on this very issue that prior written notice of a purported tree well defect remains a condition precedent to establishing municipal liability (see Tucker v City of New York, 84 AD3d 640 [1st Dept 2011]; see Holmes v Town of Oyster Bay, 82 AD3d 1047 [2d Dept 2011]).
With this much established, it is the determination of this Court that the City has made a prima facie showing of its entitlement to judgment as a matter of law by the submission of evidence demonstrating the absence of prior written notice of any purported defect regarding the subject tree well (see Smirnova v City of New York, 64 AD3d 641), and that plaintiff, in opposition, has failed to raise a triable issue regarding either the receipt of such notice (see Hyland v City of New York, 32 AD3d 822, 823) or the pertinence of any of the recognized exceptions to the prior written notice requirement (see Regan v. Town of N Hempstead, 66 AD3d 863).
Accordingly, it is hereby
ORDERED, that defendant's motion for summary judgment is granted and the complaint is dismissed: and it is further
ORDERED, that the Clerk shall enter judgment accordingly.
ENTER,
__________________________
Hon. Thomas P. Aliotta
J.S.C.