Summary
In Laing v. City of New York (71 N.Y.2d 912, 914) the Court of Appeals ruled that a Parks Department tree inspection report that noted a cracked sidewalk was not a "written acknowledgement" because it could not be "considered an expression of the City's awareness of an unsafe or defective sidewalk in need of repair."
Summary of this case from Borgia v. City of New YorkOpinion
Argued March 16, 1988
Decided April 21, 1988
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, Alfred D. Lerner, J.
Spiros A. Tsimbinos for appellant.
Peter L. Zimroth, Corporation Counsel (Ingeborg B. Garfield and Barry P. Schwartz of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
Plaintiff commenced an action against the City of New York and Lydia Dunbar alleging that on July 2, 1983 he was injured when he tripped and fell on a negligently maintained sidewalk in front of Dunbar's home in Queens. He pleaded that he had satisfied the notice requirement of the "Pothole Law" for actions against the City (Administrative Code of City of New York § 7-201 [c] [2]). At trial, plaintiff's counsel asserted in his opening statement that the defective condition had existed since 1971; that Dunbar had called the Department of Parks and Recreation concerning the condition; that an inspector from the Parks Department had come to the location in July 1983 and, on a tree inspection report form line for "Sidewalk Conditions," had written the word "Cracked"; and that the City had not thereafter repaired the condition. The trial court granted the motion to dismiss the complaint against the City on the ground that the handwritten notation "Cracked" on the tree inspection report form did not satisfy the notice requirement of the Pothole Law. The Appellate Division affirmed, holding that in order to satisfy the Pothole Law, any "written acknowledgment from the city" had to come from the City Department of Transportation.
The Pothole Law provides that "[n]o civil action shall be maintained against the City for damage to property or injury to person or death sustained in consequence of any street, highway, bridge, wharf, culvert, sidewalk or crosswalk * * * being out of repair, unsafe, dangerous or obstructed," unless prior notice is established in one of three ways: by "written notice of the * * * condition * * * actually given to the commissioner of transportation"; by "previous injury to person or property as a result of the * * * condition, and written notice thereof * * * given to a city agency;" or by "written acknowledgment from the city of the * * * condition". Plaintiff alleges compliance solely on the basis of the third alternative — that the notation "Cracked" on the tree inspection report form constituted a "written acknowledgement from the city".
We agree with the Appellate Division that plaintiff did not satisfy the notice requirement of the Pothole Law. The tree inspection report reveals that it was completed by the Parks Department in connection with tree-pruning, not in connection with any sidewalk condition. While we recognize that the prior notice provision of the Pothole Law is in derogation of common law and thus that its language must be strictly construed against the City (see, Doremus v Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 365), the generalized notation of "Sidewalk Condition" as "Cracked" on the tree inspection report cannot be considered an expression of the City's awareness of an unsafe or defective sidewalk in need of repair. We thus do not reach the question whether a "written acknowledgment from the city" under the Pothole Law must come only from the Department of Transportation — which was the basis of the Appellate Division decision.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed, with costs, in a memorandum.