Sacco v. City of New York

• Citation: 92 A.D.3d 529,2012 N.Y. Slip Op. 01177,938 N.Y.S.2d 314
• Parties: Anthony S. SACCO, Plaintiff–Appellant, v. The CITY OF NEW YORK, Defendant–Respondent.
• Decision Date: 16 February 2012
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01177

92 A.D.3d 529

938 N.Y.S.2d 314

Anthony S. SACCO, Plaintiff–Appellant,

v.The CITY OF NEW YORK, Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Feb. 16, 2012.

Raymond L. Mylott, Jr., New York, for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Alan G. Krams of counsel), for respondent.

ANDRIAS, J.P., SWEENY, MOSKOWITZ, RENWICK, RICHTER, JJ.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered November 18, 2009, which denied plaintiff's motion for partial summary judgment on the issue of liability, and granted defendant's cross motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion granted, and the cross motion denied.

In this trip and fall action, the motion court erred in determining, as a matter of law, that the City had not been provided with prior written notice, pursuant to Administrative Code § 7–201(c)(2), of the defective condition upon which plaintiff fell ( see Bruni v. City of New York, 2 N.Y.3d 319, 326–327, 778 N.Y.S.2d 757, 811 N.E.2d 19 [2004] ). Plaintiff made an evidentiary showing that the City received an inspection report, dated November 2004, from its Parks Department, the agency responsible for repairing the subject walkway, showing that “it had knowledge of the condition and the danger it presented” ( id.). The report serves as an “acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition” (§ 7–201 [c][2]; Bruni at 326–327, 778 N.Y.S.2d 757, 811 N.E.2d 19). Since the City had notice of a defect and failed to cure it, despite having an opportunity to do so, plaintiff's motion for partial summary judgment on the issue of liability should have been granted.

The motion court also erred in dismissing the complaint upon finding that plaintiff failed to identify precisely the site of his accident. Plaintiff described the location of his accident adequately in his affidavit and his bill of particulars, and submitted an expert engineer's affidavit attesting to the precise measurement of the accident site.

Motions to enlarge record and to strike reply brief denied.