Getting a Recovery for a Sidewalk Fall; New York’s High Court K.O.’s Sidewalk Accident Cases


   Last week New York’s highest court has set-back  New Yorkers who have been injured by dangerous city sidewalks.

If you have been injured due to a broken sidewalk, please call me at 800-581-1434.

The Court of Appeals ruled in D’Onofrio v. City of New York and Shaperonovitch v. City of New York that the prior notice maps of Big Apple Pothole and Sidewalk Protection Corp. do not provide adequate, prior notice of sidewalk defects.

Big Apple Pothole provides the City maps of the streets showing broken curbs, uneven pavements, and other sidewalk and cross-walk defects.  Big Apple was set-up by New York State Trial Lawyers Association in order to provide the City prior, written notice of sidewalk defects as required by the so-called “Pothole Law” .   The law requires that the City be provided prior, written notice of defects in order to be held liable for a broken sidewalk.  Big Apple did annual surveys of  the City’s streets.  The Big Apple maps have various symbols and legends indicating the defects found, such as a line for rasied or uneven portion of the pavement and a circle for a hole in the sidewalk.  These maps were updated annually, and each year’s new maps were delivered to the City’s Department of Transportation.

In D’Onofrio the trial judge found that as a matter of  law the map did provide sufficient notice.  In Shaperonovitch the jury determined that the map provided good notice, and the jury awarded damages.  The Court of Appeals held that in both cases the maps did not provide exact notice of the defects.  Therefore, both cases were dismissed.  In essence Judge Smith said that the maps’  notations of defects were insufficient.  

This has been a set-back for injured New Yorkers, especially those who have pre-2006 cases solely against the City.  The law was changed in 2006 so that adjoining property owners have the primary liability for a defective sidewalk.  See our prior post, “Getting a Recovery for a Broken Sidewalk; How to Win a Defective Sidewalk Case against the City or the Adjoining Property Owner.”

Judges Jones and Pigott dissented.  Judge Jones noted that although the Big Apple map was not perfect, it did provide notice of a defect to the City.  Judge Jones noted that “a deliberate mark on the map gives notice to the City of some defect — rather than no defect al all — at  that location.”  The symbols could be reasonably interpreted a number of ways, and the issue of fact is for the jury.

This decision evidences the Court of Appeals hostility toward injured plaintiffs.  Fortunately, the change in the law in 2006 casts liability against the adjoining property owner, and the Big Apple map is no longer necessary to prove a case.  However, the maps can be used to help prove notice against the property owner.

We have handled hundreds of sidewalk and roadway cases.  If you have been injured by a fall on a broken sidewalk, please feel free to call me at 800-581-1434.

Mark E. Seitelman, 12/23/08, www.seitelman.com.

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