Posted by Edward LemmoJul 11, 2022
Common defenses raised by the City of New York involving trip and fall personal injury cases on defective sidewalk or street defects or potholes.
1) Sidewalk Cases and the Administrative Code of the City of New York Section 7-210 , Pursuant to that section adjacent property owners have the legal duty to maintain abutting sidewalks that are raised or uneven or broken in a reasonably safe condition, presently adjacent property owners (not the City of New York) are responsible for personal injuries caused by the failure to install, construct, repave, or repair or replace a defective sidewalk. Section 7-210 absolves the City of New York of liability for property damage or personal injuries, caused by the failure of the property owner to comply with this section of the law.
However curbs are excluded from liability under this law. In Ascencio v New York City Housing Authority , the Court held that the adjacent property owner, in that case the NYCHA was not obligated to maintain the curb because Section 7-210 of the Administrative Code only requires taht the adjacent property owner maintain sidewalks abutting their property and not the curb. Section 19-101(d) of the Administrative Code excludes the curb from the sidewalk definition. IN NYC City is responsible for maintaining the curb.
2) Pothole Cases in Streets in the City of New York - Suing City of New York for an Injury caused by a Pothole or uneven NYC manhole cover. Who is liable when you drive , trip or bike over a NYC Pothole or NYC manhole cover.? At Lemmo Law we handle cases involving injured pedestrians who fall into or trip or bike over defective sunken manhole covers. A Notice of Claim must be filed with the City of New York Department of Transporation to preserve your claim within 90 ninety days.
What to do right away if involved in Pothole Accident ? If involved in a pothole accident take photos or videos right away of the hole and get namesof any witnesses and specific location of accident
Problems with proving a personal injury case in a Pothole Accident
In the City of New York we have a “prior written notice” law. “With any injury caused by a pothole,” says Edward Lemmo Esq. , a personal injury attorney at Lemmo Law . The Prior Written Notice Law means that the City of New York will not be held responsible and will be immune from liability unless they had prior written notice of that pothole. Even if there was a 311 call it will not suffice to prove prior written Notice to the City of New York . If you fell inside of a Crosswalk you may be able to obtain maps served on the Department of Transportation of the City of New York by a company called the " Big Apple Pothole and Sidewalk Protection Corporation to see if the pothole inside of a crosswalk was documented in a map and that map was served on the department of Transporation of the City of New York prior to your accident. he New York Court of Appeals (New Yorks highest court) has recognized only two exceptions to the statutory rule requiring prior written notice: (1) where the locality created the defect or hazard through an affirmative act of negligence; or (2) where a “special use” confers a special benefit upon the locality. For entities who own manhole covers or structures in the street for example, Con Edison or Brooklyn Union gas, the law provides that the owner of the structure is responsible for 12 inches that surround any street hardware that is not properly maintained, for example , a raised manhole cover of defect in teh street within 12 inches of it. See the law section 34 RCNY Section 207(b)  and .
However, in order to prevail against the City for defective manhole cover owned by the City of NY or a depression in the roadway caused by a sunken NYC manhole cover the Appellate Division and high courts have rejected liability or notice against the City of New York and dismissed the injured parties' cases. For example, in Gori v City of New York, 2019 NY Slip Op 02856 decided April 17 2019 Appellate Division 2nd Dept the Court , in an action to recover damages for personal injuries, granted the defendant City of New York's motion for summary judgment dismissing the complaint. In Gori, supra the plaintiff was injured when she was thrown from her bicycle while riding in Brooklyn when the front wheel of her bicycle became caught on a depressed manhole cover owned by the City of New York. The plaintiff commenced this action against the city to recover damages for personal injuries, alleging that the City had prior written notice of the allegedly dangerous manhole cover, was negligent in failing to maintain the accident site, and violated its statutory duty to maintain the area pursuant to 34 RCNY § 2-07(b). After discovery, the City moved for summary judgment dismissing the complaint, arguing, inter alia, that it did not have prior written notice of the alleged condition as required under section 7-201(c)(2) of the Administrative Code of the City of New York, and that no recognized exception to the prior written notice requirement applied. The plaintiff opposed, arguing that the City failed to establish, prima facie, that it lacked prior written notice of the alleged condition, and that section 7-201(c) The Court held that section 34 RC NY section 2-07 ( b ) did not apply in light of the City's nondelegable duty under 34 RCNY § 2-07(b). In summary, the holding of the court is that where a municipality has enacted a prior written notice statute, it may not be subjected to liability for a defect within the scope of the law unless it has received prior written notice of the defect or an exception to the prior written notice requirement applies (see Amabile v City of Buffalo, 93 NY2d 471,474; Albano v Suffolk County, 99 AD3d 741, 742; Forbes v City o(New York, 85 AD3d 1106, 1107).
"The only two recognized exceptions to a prior written notice requirement are the municipality's affirmative creation of a defect or where the defect is created by the municipality's special use of the property" (Forbes v City of New York, 85 AD3d at 1107; see Amabile v City of Buffalo, 93 NY2d at 474). In the Court of Appeals case of Yarborough v, The City of New York, the court ruled in a case were the injured party tripped and fell in a pothole , that where there is no prior written notice, and the defect was not caused by the immediate work or deterioration of the asphalt patch, but rather over the course of time with environmental wear and tear, there is no case. The affirmative negligence exception in the law is limited " to work by the City that immediately results in the existence of a dangerous condition said the Court. " The Court went on to state that The City established its prima facie entitlement to judgment as a matter of law by presenting evidence that the City agency responsible for maintaining the subject manhole cover did not have prior written notice of the alleged condition of the manhole cover as required by Administrative Code of the City of New York§ 7-201(c)(2) (see Conner v City o(New York, 104 AD3d 637,638; cf Bruni v City ofNew York, 2 NY3d 319,325). and that no recognized exception to the prior written notice requirement applies. In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562; Conner v City of New York, 104 AD3d at 638). Contrary to the plaintiff's contention, the City's duty to maintain city-owned street manhole covers in accordance with 34 RCNY § 2-07(b) does not obviate the requirement of prior written notice under section 7-201(c)(2) or the application of a recognized exception thereto as a condition precedent to a civil lawsuit against the City (see Administrative Code § 7-201[c]Improper installation may also fall under the affirmative-creation exception. which is that the city affirmatively created a defect through an act of negligence in repairing the pothole. You must obtain a roadway expert to inspect the area and oping that the City of New York 's Department of Transporation's crews patchwork to repair the defect immediately resulted in a dangerous condition" The attorney prosecuting any roadway defect case must obtain in discovery DOT's Standard Specifications and Standard Detailed Drawings pertaining to the sidewalk , curb and roadway work
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