O'Donoghue v. City of New York

Nov 8, 2012
Versions:100 A.D.3d 402
953 N.Y.S.2d 494

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered October 12, 2011, which, in an action for personal injuries allegedly sustained when plaintiff tripped and fell over a raised brick in a tree well, granted the motion of defendant City of New York for summary judgment dismissing the complaint, unanimously affirmed, without costs.

It is well established that in order to hold the City liable for injuries resulting from defects in tree wells in City-owned sidewalks, a plaintiff must demonstrate that the City has received prior written notice of the defect (see Administrative Code of City of NY § 7-201 [c] [2]; Tucker v City of New York, 84 AD3d 640 [1st Dept 2011], lv denied 17 NY3d 713 [2011]). Here, in opposition to the City‘s showing of entitlement to judgment as a matter of law, plaintiff submitted, inter alia, a Big Apple Map to prove that the City had notice of the allegedly defective condition. However, the map only provided notice that every tree well on the block lacked a fence or barrier, which was not sufficient to bring the particular condition to the City‘s attention (see D‘Onofrio v City of New York, 11 NY3d 581 [2008]).

Concur —Andrias, J.P., Saxe, Moskowitz, Abdus-Salaam and Manzanet-Daniels, JJ.