ARUTYUNOV v. CITY OF NEW YORK (2019)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

On August 13, 2011, the plaintiff Artur Arutyunov (hereinafter the injured plaintiff) allegedly was walking on 19th Street between Avenue Y and Avenue X in Brooklyn when he tripped and fell on an uneven sidewalk condition.  The injured plaintiff, and his wife suing derivatively, commenced this personal injury action against the defendant, the City of New York. The plaintiffs moved for summary judgment on the issue of liability.  The Supreme Court denied the motion, and the plaintiffs appeal.

“Administrative Code of the City of New York § 7–201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects ․ which its officials have been actually notified exist at a specified location” (Katz v. City of New York, 87 N.Y.2d 241, 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374).  “Prior written notice of a defect is a condition precedent which a plaintiff is required to plead and prove to maintain an action against the City” (Daniels v. City of New York, 91 A.D.3d 699, 700, 936 N.Y.S.2d 897).  A map submitted by the Big Apple Pothole & Sidewalk Protection Committee (hereinafter Big Apple) “to the Department of Transportation may serve as prior written notice of a defective condition” (Walker v. Jenkins, 137 A.D.3d 1014, 1015, 27 N.Y.S.3d 242;  see Katz v. City of New York, 87 N.Y.2d at 243, 638 N.Y.S.2d 593, 661 N.E.2d 1374;  Vertsberger v. City of New York, 34 A.D.3d 453, 455, 824 N.Y.S.2d 346;  Cassuto v. City of New York, 23 A.D.3d 423, 424, 805 N.Y.S.2d 580).  “Where there are factual disputes regarding the precise location of the defect that allegedly caused a plaintiff's fall, and whether the alleged defect is designated on the map, the question should be resolved by the jury” (Cassuto v. City of New York, 23 A.D.3d at 424, 805 N.Y.S.2d 580).

Here, in support of their motion, the plaintiffs failed to submit evidence sufficient to establish, prima facie, the precise location of the defective condition that allegedly caused the injured plaintiff to fall, and whether the alleged defective condition was designated on a certain Big Apple map submitted to the Department of Transportation (see Walker v. Jenkins, 137 A.D.3d at 1015, 27 N.Y.S.3d 242;  Perez v. City of New York, 110 A.D.3d 777, 778–779, 972 N.Y.S.2d 662;  Brown v. City of New York, 90 A.D.3d 591, 933 N.Y.S.2d 895;  Cassuto v. City of New York, 23 A.D.3d at 424, 805 N.Y.S.2d 580).  Since the plaintiffs failed to meet their initial burden as the movants, we agree with the Supreme Court's determination to deny their motion for summary judgment on the issue of liability without regard to the sufficiency of the City's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In light of our determination, we need not reach the parties' remaining contentions.

AUSTIN, J.P., LEVENTHAL, ROMAN and LASALLE, JJ., concur.