CASIANO v. Qwick Kurb Inc., et al., Defendants. (2024)

Order, Supreme Court, New York County (Machelle Sweeting, J), entered on or about July 29, 2022, which, to the extent appealed from as limited by the briefs, granted defendant The City of New York's motion to dismiss pursuant to CPLR 3211(a)(7) and for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff Juan Casiano alleges that he sustained injuries when he was crossing the street and tripped over a traffic device, known as a bollard holder, located in the middle of the street.  The City met its prima facie burden by establishing the uncontroverted fact that it received no prior written notice of a defect in the road (see Martin v. City of New York, 191 A.D.3d 152, 155, 137 N.Y.S.3d 346 [1st Dept. 2020];  Brown v. City of New York, 150 A.D.3d 615, 615–616, 56 N.Y.S.3d 67 [1st Dept. 2017]).  The burden then shifted to plaintiffs to raise a factual issue as to the existence of written notice or the applicability of an exception (id.).  Plaintiffs met their burden by submitting evidence demonstrating that the City affirmatively created the alleged defective condition in the roadway by installing the device, which is raised about four inches from the road and starts right next to the crosswalk (see Martin v. City of New York, 191 A.D.3d at 154, 137 N.Y.S.3d 346).  Documents and testimony by a Department of Transportation supervisor established that the City installed the device near the crosswalk.  Although plaintiffs' expert did not inspect the location until several years after the accident, photographs show that the condition remained unchanged.  Thus, a factfinder could reasonably determine that the City's installation of a raised device mere inches from a busy pedestrian crosswalk could create an immediately dangerous tripping hazard for pedestrians (see id. at 155, 137 N.Y.S.3d 346).

Plaintiffs have abandoned their cross-motion to amend the notice of claim.  In any event, the notice of claim permitted the City to “locate the place, fix the time and understand the nature of the accident” (Brown v. City of New York, 95 N.Y.2d 389, 393, 718 N.Y.S.2d 4, 740 N.E.2d 1078 [2000];  see Vaynshelbaum v. City of New York, 140 A.D.3d 406, 407, 33 N.Y.S.3d 37 [1st Dept. 2016]).