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Roadway and Sidewalk Defects- The challenges in proving “prior written notice”


When Lt. Brendan Connolly a New York City Firefighter was responding to a local emergency, the dangers of being a firefighter were always in the back of his mind.  Smoke, trapped locations, innocent victims needing help.

However, the roads of New York City are often so dilipadated and filled with potholes and ruts that when his fire truck hit a recurring defect in a city street of Cypress Hills, Queens his life would change forever.

As reported here in the New York Post, Lt. Connolly fractured his spine and has been rendered disabled from working because of a sinkhole that has been recurring.  Neighbors report that this problem has been recurring for years.  Yet, the ability to legally recover against the City of New York for this defect is fraught with many hurdles.  Some nearly impossible to overcome.

Similar, I was recently consulted by a man who fell while walking off a New York City Boardwalk on a pedestrian ramp and there was a large but hidden hole where the boardwalk met the concrete.  He fell and has been rendered seriously injured.

As an attorney, my firm is consulted by many who have fallen or been injured when they trip and fall due to a sidewalk or roadway defective condition.  Under the present law, a sidewalk defect in front of a property other than a one, two, or three family owner occupied home is the repsonbility of the landowner.  This is a change made during the Bloomberg Adminsitration and alleviated the City from legal responsibility for those defects.

Curbs, pedestrian ramps, crosswalks, and all defects in the roadway remain the responsibility of the City of New York.  As a barrier to be able to recover, an injured party must  prove that the City of New York had PRIOR WRITTEN NOTICE TO THE DEPARTMENT OF TRANSPORTATION AT LEAST 14 DAYS BEFORE THE ACCIDENT OF THE SPECIFIC CONDITION AT ISSUE.

This hurdle has become almost nearly impossible to prove.  Even with the advent of 311 where consumers and citizens can call in defects, the Courts have held that those “calls” even if reduced to writing via the computer system entry IS NOT PRIOR WRITTEN NOTICE.

Even if DOT creates what is known as an internal FITS report, wherein they go out and look at a defect, the Court has held that this may not satisfy the requisite notice.  Moreover, during litigation, what documents the City chooses to provide is often subject of lengthy motions, and requests of the Court to order the exchange of documents.

So just like Lt. Connolly and many others, the ability to prove the City had notice of the condition in writing has become a major hurdle.

Partner, Daniela Henriques at Leav & Steinberg, has created a very detailed FOIL (Freedom of Information Law) demand which we send out to the respective DOT agency and others in which we have been very successful in proving, at the earliest stage, that our client should be able to have their day in Court.

Just some recent examples: a man retained us, after falling over a defect on the sidewalk adjacent to a City owned building.  A woman fell at a pedestrian ramp due to a curb defect.  Both times, the City provided documents did not have the “prior written notice” proof we needed.  Yet with our FOIL request and continued investigation, we were able to prove in both instances that the City did have prior written notice of the defect.  Almost immediately after showing the City lawyer’s this proof, our clients received full and adequate compensation for their injuries.