D'Onofrio v. City of New York

Saxe, J.P.,

dissents in a memorandum as follows: I would reverse and deny the motion for a directed verdict, and reinstate the jury verdict as against defendant City. The jury’s finding that the City had received prior written notice of the defect was sufficiently supported and should not have been set aside.

Plaintiff testified that he fell on a defective area of the sidewalk in front of 20 Broad Street, where a subway grating *236was broken and unstable, and the crumbling cement next to the moving grating created a gap in which his feet got caught. The map filed with the Department of Transportation by the Big Apple Pothole and Sidewalk Protection Corporation contained two notations for that area, containing the map’s symbol for uneven or raised areas of the sidewalk.

Although the jury found against the City on the issues of both notice and liability, the trial court granted the City’s motion for a directed verdict, asserting that plaintiffs accident was caused by his tripping on a portion of the subway grating, which defect was not part of the City’s sidewalk. The court further observed that the Big Apple map notations for defects on the sidewalk in front of 20 Broad Street, which provided notice for a “raised or uneven portion of the sidewalk” did not constitute notice with respect to a defective subway grating.

The issue of whether the filed notice constituted proper prior written notice to the City of the defective condition was properly given to the jury to decide (see Almadotter v City of New York, 15 AD3d 426, 427 [2005]). Contrary to the assessment of the trial court and the majority here, the claimed defect was not a defective subway grating, per se. It included the sidewalk adjacent to the grating, which, upon the movement of the grating, left a gap for plaintiffs feet to become caught in. This Court has held that depiction of a particular hazard on the Big Apple map does not provide notice as to a different hazard—for instance, a notation of a cracked sidewalk is not notice of a hole 12 inches in diameter (see Roldan v City of New York, 36 AD3d 484 [2007]). However, the terms employed in describing the claimed defect need not be exactly those employed on the Big Apple map. In Almadotter (supra), the plaintiff alleged that the sidewalk was “cracked, uneven, irregular, unlevel, [and] raised,” while the map described the area as an “extended section of obstructions protruding from [the] sidewalk” (id. at 427), and the Court held that the question of whether the notice applied to the claimed defect should be left to the jury (id.). Similarly, in the present case, the use of the term “uneven sidewalk” bears enough of a relationship to a depression within the paved area adjacent to a subway grate to leave it to the jury to determine as a question of fact whether the City received notice of the claimed defect (see Cassuto v City of New York, 23 AD3d 423 [2005]; Almadotter, supra). That finding should not have been disturbed.