Inspection Report Satisfied NYC’s “Pothole Law” Notice Requirement

In Sacco v. City of New York (App. Div. 1 Dept. Feb. 16, 2012), an Appellate Division, First Department panel held that the trial court erred in determining, as a matter of law, that the City was not provided with sufficient notice, per NYC Administrative Code § 7-201(c)(2), of the defective condition upon which plaintiff fell.

Section 7-201(c)(2), known as the “Pothole Law”, provides:

No 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, or any part or portion of any of  the foregoing including any encumbrances thereon or attachments thereto, being out of repair, unsafe, dangerous or obstructed,  unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition, was actually given to the  commissioner of transportation or any person or department authorized by the commissioner to receive such notice, or where there was previous injury to person or property as a result of  the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency, or there was written acknowledgement from the city of the  defective, unsafe, dangerous or obstructed condition, and there was a failure or neglect within fifteen days after the receipt  of  such notice to repair or remove the defect, danger or obstruction complained of, or the place otherwise made reasonably safe.

Plaintiff satisfied the law’s notice requirement by establishing that “the City received an inspection report, dated November 2004, from its Parks Department, the agency responsible for repairing the subject walkway, showing that ‘it had knowledge of the condition and the danger it presented'”.  This report “serves as an ‘acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition'” and “[s]ince the City had notice of a defect and failed to cure it, despite having an opportunity to do so, plaintiff’s motion for partial summary judgment on the issue of liability should have been granted.”

The trial court also erred by dismissing plaintiff’s complaint by finding that plaintiff “failed to identify precisely the site of his accident”; to the contrary, plaintiff “described the location of his accident adequately in his affidavit and his bill of particulars, and submitted an expert engineer’s affidavit attesting to the precise measurement of the accident site.”

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