Karten v. City of New York
| Decision Date | 25 June 1985 |
| Citation | 490 N.Y.S.2d 503,109 A.D.2d 126 |
| Parties | Beverly KARTEN and Judah Karten, Plaintiffs-Appellants, v. The CITY OF NEW YORK, Defendant-Respondent and Third-Party Plaintiff, v. CONSOLIDATED EDISON, Third-Party Defendant-Respondent. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Fourth-Party Plaintiff-Respondent, v. INTERBORO ASPHALT PAVING CO., INC. Fourth-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Richard Cary Spivack, Hollis, of counsel (Abbott & Bushlow, Ridgewood, attorneys) for plaintiffs-appellants.
Ellen B. Fishman, New York City, of counsel (Stephen J. McGrath, New York City, with her on brief; Frederick A.O. Schwarz, Jr., New York City, attorney), for defendant-respondent and third-party plaintiff City of N.Y.
Geraldine O'Donnell, Brooklyn, of counsel (Ernest J. Williams, New York City, attorney) for the third-party-defendant-respondent Consol. Edison.
Before KUPFERMAN, J.P., and SULLIVAN, FEIN, MILONAS and ELLERIN, JJ.
On September 16, 1977 plaintiff Beverly Karten (Beverly), then 45 years of age, was crossing East 52nd Street in the cross-walk on the westerly side of Lexington Avenue in Manhattan when she fell and sustained a comminuted fracture of her right elbow by reason of an allegedly dangerous and defective condition in the roadway pavement. There was no direct evidence of actual notice of the condition nor as to how long the condition of the pavement had existed before the accident occurred. However, there were received in evidence, on behalf of the plaintiffs, photographs of the area which had been taken approximately three weeks after the incident. Rose Horowitz (Rose), who was walking with Beverly at the time of the incident, testified that the area where plaintiff had fallen was very bumpy, and that there was a two to three inch depression near Beverly's feet where she fell. Rose identified one of the photographs as fairly and accurately representing the area where Beverly had fallen.
As part of plaintiffs' case, plaintiffs' counsel read the transcript of the deposition of the senior custodian of the vaults and records of the Department of Highways of the City of New York. There was no record of any complaint and no record of work being done in the roadway at the accident site by the City or any other entity.
At the conclusion of plaintiffs' proof, the trial judge granted defendant's motion to dismiss the complaint on the ground that plaintiffs had failed to prove a prima facie case of actual or constructive notice of the alleged defect. The "pothole law" was not in effect at the time of the accident.
It has long been settled that photographs may be used to prove constructive notice of an alleged defect shown in the photographs, if they are taken reasonably close to the time of the accident, and there is testimony that the condition at the time of the accident was substantially as shown in the...
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Ferris v. County of Suffolk
...presented as to whether the municipalities had either actual or constructive notice of the defects (see also, Karten v. City of New York, 109 A.D.2d 126, 127-128, 490 N.Y.S.2d 503; Rinaldi v. State of New York, 49 A.D.2d 361, 364, 374 N.Y.S.2d It should be further noted that Klimek involved......
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Trincere v. County of Suffolk
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