ALYCE KATZ, APPELLANT, v. CITY OF NEW YORK, RESPONDENT.
87 N.Y.2d 241, 661 N.E.2d 1374, 638 N.Y.S.2d 593
December 28, 1995
1 No. 303(1995 NY Int. 306)
Decided December 28, 1995
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Arnold E. DiJoseph, III, for Appellant.
Elizabeth S. Natrella, for Respondent.
CIPARICK, J.:
On February 13, 1988, plaintiff tripped on an alleged defect in the
sidewalk on Second Avenue between East 71st and East 72nd Street in
Manhattan, causing her to fall and suffer injury. In an attempt to
comply with the statutory condition precedent of prior written notice,
plaintiff filed a map dated June 5, 1986 with the City of New York
depicting the defect that purportedly caused her fall. Supreme Court
granted defendant's trial motion for a directed verdict and dismissed
the complaint when the City produced a "successor" map, dated November
4, 1987, that did not show any defect in the area of plaintiff's
accident, ruling that plaintiff failed to satisfy the prior written
notice requirement. The question presented on this appeal is whether
the earlier map can legally satisfy the statutory requisite of prior
written notice. We conclude, in the factual circumstances presented,
that it cannot and therefore affirm the order of the Appellate
Division.
New York City Administrative Code § 7- 201(c) limits the City's duty
of care over municipal streets and sidewalks by imposing liability
only for those defects or hazardous conditions which its officials
have been actually notified exist at a specified location (see
generally, Poirier v City of Schenectady, 85 NY2d 310, 314). As
recognized by plaintiff, prior written notice of a defect is a
condition precedent which plaintiff is required to plead and prove to
maintain an action against the City (see, Poirier v City of
Schenectady, supra, 85 NY2d, at 313; Barry v Niagara Frontier Tr.
Sys., 35 NY2d 629, 633-634). The failure to demonstrate prior written
notice leaves plaintiff without legal recourse against the City for
its purported nonfeasance or malfeasance in remedying a defective
sidewalk. Because this prior written notice provision is a limited
SNIPPETS:
This opinion is uncorrected and subject to revision before publication in the New York
On February 13, 1988, plaintiff tripped on an alleged defect in the sidewalk on Second Avenue
In an attempt to comply with the statutory condition precedent of prior written notice,
Supreme Court granted defendant's trial motion for a directed verdict and dismissed the
We conclude, in the factual circumstances presented, that it cannot and therefore affirm the
New York City Administrative Code § 7- 201limits the City's duty of care over municipal
Maps prepared by Big Apple Pothole and Sidewalk Protection Committee, Inc. and filed with the
While admitting that it was served with the map dated June 5, 1986, the City argued in
Based on Big Apple's policy that subsequent, successor maps supersede earlier maps,Supreme
Such a policy is also practical based on the mechanics of Big Apple s filing policies, a
requiring a search to proceed from the most current notices back to older notices at once
In compliance with Administrative Code § 7-201, which provides that a plaintiff may not
Prior written notice ordinances are justified because a municipality may not reasonably be
Notwithstanding trial testimony that subsequent maps supercede earlier maps, that fact is
speculation as to the reasons behind plaintiff's trial strategy constitutes mere conjecture
Chief Judge Kaye and Judges Bellacosa and Levine concur.
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