Brown v. City of NY

• Decision Date: 16 November 2000
• Docket Number: No. 105,105
• Citation: 718 N.Y.S.2d 4,740 N.E.2d 1078,95 N.Y.2d 389
• Parties: (Ct.App. 2000) Robert Brown, Appellant, v. City of New York, Respondent. 2
• Court: New York Court of Appeals Court of Appeals

Page 4

718 N.Y.S.2d 4 (Ct.App. 2000)

Robert Brown, Appellant, v. City of New York, Respondent.

2 No. 105

NEW YORK COURT OF APPEALS

November 16, 2000

DiJoseph, Portegrello & Schuster, P.C., New York City (Arnold E. DiJoseph III of counsel), and Bloomberg, Steinberg & Bader for appellant.

Michael D. Hess, Corporation Counsel of New York City (Linda H. Young and Pamela Seider Dolgow of counsel), for respondent.

OPINION OF THE COURT

KAYE, CHIEF JUDGE.

This appeal tests the sufficiency of a Notice of Claim required for suit against a municipality (General Municipal Law § 50-e). The Appellate Division, after a verdict in plaintiff's favor for personal injuries resulting from a fall on a New York City sidewalk, affirmed the trial court's dismissal of the complaint on the ground that "plaintiff failed to notify the City in his notice of claim of the location of the defect which he claimed at trial was the cause of his accident" (265 A.D.2d 284). Concluding that notice was adequate, we now reverse.

Shortly after falling on a Brooklyn sidewalk, plaintiff served a Notice of Claim on the City, alleging:

"The accident occurred on December 2, 1993, at or about 11:00 a.m., when claimant sustained fractures to his right leg and ankle after tripping on a broken and defective portion of sidewalk and curb, located on West 33rd Street, approximately 65 feet and 7 inches south of the southwest corner of Mermaid Avenue and West 33rd Street, and 8 feet and 4 inches east from the lot line on the west side of West 33rd Street, in the County of Kings, City and State of New York. * * * The defective area is approximately eight inches wide and approximately 2 inches deep" (emphasis added).

Three pictures of the accident site--each containing a circle drawn around the curb that extended to include a small portion of the sidewalk--accompanied plaintiff's Notice of Claim, which additionally stated:

"The photograph annexed hereto and designated as '1' depicts the location of the aforesaid defective sidewalk and curb in relation to the southwest corner of Mermaid Avenue and West 33rd Street. The photograph annexed hereto and designated as '2' depicts a closer view of the aforesaid defective sidewalk and curb. The photograph annexed hereto and designated as '3' depicts a close up view of the aforesaid defective sidewalk and curb" (emphasis added).

At a hearing conducted pursuant to General Municipal Law § 50-h, which permits the City to examine a claimant "relative to the occurrence and extent of the injuries" (subd. [1]), plaintiff testified that he fell after stepping on a broken sidewalk. At his deposition, and later at trial, plaintiff reconfirmed that he had never reached the curb and that he fell after he "stepped on [a] broken sidewalk."

The evidence at trial established that the City had prior written notice of the sidewalk defect but not of any dangerous conditions associated with the curb. Thus, the Trial Judge instructed the jury that plaintiff could recover only if they found that he had fallen on the sidewalk (see, Administrative Code of City of N.Y. § 7-201[c]). The jury returned a verdict in plaintiff's favor, finding specifically that he had fallen on the sidewalk. The City moved to set aside the verdict, alleging among other grounds, that the Notice of Claim was defective. Supreme Court held that "by circling the defective curb on each of the photographs and giving precise measurements, to the inch, of the defect's location and size, plaintiff [was] precluded from alleging at trial that it was a defective sidewalk rather than a defective curb that caused the accident." The court additionally concluded the verdict was against the weight of the evidence. The Appellate Division affirmed solely on the ground that plaintiff's Notice of Claim was deficient in failing to notify the City of the location of the injury-causing defect. We now reverse and remit to the Appellate Division for consideration of additional issues not previously reached by that court.

To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim (see, Winbush v. City of Mount Vernon, 306 N.Y. 327, 333; Rivero v. City of New York, 290 N.Y. 204, 208; Purdy v. City of New York, 193 N.Y. 521, 523, rearg. denied 195 N.Y. 604; see also, Siegel, N.Y. Prac. § 32, at 35 [3d ed.]). General Municipal Law § 50-e(2) ("Form of notice; contents") requires, among other things, that a Notice of Claim "be in writing, sworn to by or on behalf of the claimant" and that it set forth:

"(1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable."

Reasonably read, the statute does not require "those things to be...