GUTIERREZ v. Consolidated Edison, Inc., et al., Defendants. (2023)

Order, Supreme Court, Bronx County (Mitchell J. Danziger, J.), entered on March 7, 2022, which granted defendant City of New York's motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for summary judgment on the issue of liability, unanimously affirmed, without costs.

In 2017, the infant plaintiff allegedly was injured when she tripped and fell over a gap created at the edge of a tree well.

The City established its entitlement to summary judgment by presenting evidence that it did not cause or create the defect and had no prior written notice of the defect, and thus could not be held liable for the infant plaintiff's injury (Administrative Code of City of N.Y. § 7–201[c][2];  see Tucker v. City of New York, 84 A.D.3d 640, 642, 923 N.Y.S.2d 525 [1st Dept. 2011], lv denied 17 N.Y.3d 713, 2011 WL 4916547 [2011]).  The Big Apple Map served on the City in 2003 showed symbols indicating a raised or uneven portion of the sidewalk in the area where plaintiff fell.  However, there were no symbols showing defective tree wells in the area where the infant plaintiff fell;  rather, the only symbols on the map indicating defective tree wells were shown in locations other than where the infant plaintiff fell.  Awareness of the sidewalk defect is insufficient to constitute notice of the defect that actually caused the accident – that is, the tree well defect (see Roldan v. City of New York, 36 A.D.3d 484, 484, 831 N.Y.S.2d 110 [1st Dept. 2007]).

In opposition, plaintiffs failed to submit evidence sufficient to raise an issue of fact as to prior written notice.  Likewise, plaintiffs failed to establish their entitlement to summary judgment on their cross motion, since in the absence of ambiguity as to the location of the accident or how the accident happened, they could not establish prior written notice of the tree well defect based on the symbols on the Big Apple Map.

We have considered plaintiffs’ remaining arguments and find them unavailing.