PATTERSON v. CITY OF NEW YORK (2003)

Order, Supreme Court, Bronx County (John Byrne, J.), entered on or about October 9, 2002, which granted the motion and cross motion of defendants 1749 Associates and the City of New York, respectively, for summary judgment dismissing the complaint, unanimously modified, on the law, to the extent of denying defendant City's cross motion for summary judgment, reinstating the complaint against said defendant and remanding for further proceedings consistent herewith;  and granting plaintiff's cross motion to the extent of deeming the complaint amended to assert the date the City received the Big Apple Pothole map, to wit, August 26, 1994, and otherwise affirmed, without costs.

 It is well settled that Big Apple Pothole maps filed with the New York City Department of Transportation serve as prior written notice to the City of the indicated defective conditions (see Weinreb v. City of New York, 193 A.D.2d 596, 598, 597 N.Y.S.2d 432).   Plaintiff precisely identified the location of her fall (adjacent to a manhole) and its cause (missing bricks).   However, from the testimony concerning the interpretation of the map's legend and scale, it cannot be determined, as a matter of law, that the map depicts the defective condition and, therefore, whether it constitutes sufficient prior written notice of the hazard (see David v. City of New York, 267 A.D.2d 419, 420, 700 N.Y.S.2d 235).   In any event, the presence of a manhole cover does not establish a special use so as to obviate notice (see ITT Hartford Ins. Co. v. Village of Ossining, 257 A.D.2d 606, 606-607, 684 N.Y.S.2d 258).   Likewise, even if the location of plaintiff's fall can be said to abut defendant 1749 Associates' property, the use of brick rather than cement to construct the sidewalk is insufficient to establish a special use on its part.   No evidence was offered that the bricks were installed at the property owner's direction in contemplation of any use other than by the general public (see Thomas v. Triangle Realty, 255 A.D.2d 153, 154, 679 N.Y.S.2d 394).