Although I've previously written about some of the ways that you can prove a negligence case against a municipality, such as New York City, based upon the doctrines of actual or constructive notice or "special use," a recent decision by one of New York's trial courts that is scheduled to appear in next week's New York Law Journal provides excellent "one-stop shopping," and a primer on just how this must be done.

In that regard, pursuant to Administrative Code of the City of New York §7-201, a plaintiff is required to both plead and prove that the City had prior written notice of the specific defect that caused the plaintiff's fall. In fact, New York's highest court has held that when a Big Apple Map is used to satisfy the prior written notice requirement, the type and location of the defect must be precisely noted on the map. See, D'Onofrio v. City of New York, 11 N.Y.3d 581 (2008).

But what if the plaintiff can't show that the City had "notice" of the defect? Is his case dead on arrival?

Not necessarily.

The City can still be held liable in negligence if it either affirmatively created the defect or if the roadway was used for a "special use" which conferred a special benefit upon the City. See, Oboler v. City of New York, 8 N.Y.3d 888, 889 (2007). To that end, if the plaintiff claims that the City caused or created the condition, the plaintiff is required to prove through evidence in admissible form that the City's negligence "immediately result[ed] in the existence of a dangerous condition." Yarborough v. City of New York, 10 N.Y.3d 726 (2008) (citations omitted); see also, Bielecki v. City of New York, 14 A.D.3d 301 (1st Dept 2005).

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer