Why Mere Rhetoric Is No Substitute For Actual Proof in a Queens Trip & Fall Case
Even though I disagree with the premise of their motion, I nevertheless respect how aggressively New York City's Corporation Counsel defended this trip and fall case in which their motion to dismiss the case was denied. The decision in this case, Weissman v. The City of New York, was published in the October 21 edition of the New York Law Journal.
Here is the novel argument that the City advanced: since the last Big Apple Pothole Map depicting the area where the plaintiff claimed that she fell over a raised portion of sidewalk was 5 years old, it was too old to have any relevance as to whether that defective condition still existed at the time of her accident. (For the uninitiated, the Big Apple Pothole & Sidewalk Protection Committee periodically supplies New York City with detailed maps of the entire New York City depicting where all of the defective conditions are located.)
But this was the latest map of the subject area prior to the date of the accident.
In denying the City's motion for summary judgment, the Court stated as follows:
"Although the City speculates that since 2003 there "unquestionably" and "inevitably" have been changes to the subject sidewalk, it provides no proof of such assertion. No evidence is submitted of any repairs, alterations or any work to the subject sidewalk subsequent to the date of the prior written notice establishing that the condition at issue was created by such work and, therefore, was not the same condition reported in the notice but a different condition. It is uncontested that the BAM of the subject location served upon the City on July 30, 2003 indicated the same condition that plaintiff alleges caused her to trip and fall. It is also admitted that said BAM was the latest one served upon the City prior to the date of the accident. Therefore, the prior written notice requirement has been satisfied and the City's motion must be denied."
It remains to be seen whether the City will appeal this decision; I wouldn't be surprised if they did, particularly given that it doesn't seem like they have anything to lose by doing so: precedent does not appear to be on their side.