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Berrios v. City of New York

Supreme Court of New York, First Department

February 6, 2014

Luis Berrios, Plaintiff-Respondent, The
v.
City of New York, Defendant-Appellant, Consolidated Edison Company of New York, Inc., et al., Defendants, Tri-Messine Construction Co., Defendant-Respondent. [And a Third-Party Action]

Michael A. Cardozo, Corporation Counsel, New York (Kathy H. Chang of counsel), for appellant.

Lefkowicz & Gottfried, LLP, New York (Eric J. Gottfried of counsel), for Luis Berrios, respondent.

Law Offices of James J. Toomey, New York (Eric P. Tosca of counsel), for Tri-Messine Construction Co., respondent.

Sweeny, J.P., Andrias, Freedman, Richter, Clark, JJ.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 22, 2011, which denied defendant City of New York's motion for summary judgment dismissing the complaint and cross claims as against it, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Eight days before plaintiff's accident, a City highway inspector employed by the Department of Transportation prepared a Highway Inspection and Quality Assurance Report identifying a two-inch-deep defect in the street at the location of the accident, and issued a Corrective Action Request for repairs. These documents constitute a "written acknowledgement from the city of the defective, unsafe, dangerous or obstructed condition, " i.e., one of the three alternative prerequisites to bringing an action against the City for personal injuries caused by a defect in the public street (see Administrative Code of City of NY § 7-201[c][2]; Bruni v City of New York, 2 N.Y.3d 319 [2004]). However, the same provision of the Administrative Code also provides the City with a 15-day grace period within which to repair or otherwise render safe the defective condition (§ 7-201[c][2]). Since the "written acknowledgement" was received by the City only eight days before the accident, this action may not be maintained against the City.

Plaintiff has identified no circumstances warranting an exception to the notice requirement of the Administrative Code or the 15-day grace period (see Walker v City of New York, 34 A.D.3d 226 [1st Dept 2006]; Campisi v Bronx Water & Sewer Serv., 1 A.D.3d 166 [1st Dept 2003]; compare Kelly v City of New York, 172 A.D.2d 350 [1st Dept 1991]).


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