Brown v. City of New York — 95 N.Y.2d 389

Majority

p. 389

[740 NE2d 1078, 718 NYS2d 4]

Robert Brown, Appellant, v City of New York, Respondent.

Argued October 12, 2000;

decided November 16, 2000

p. 390

POINTS OF COUNSEL

DiJoseph, Portegrello & Schuster, P. C., New York City (Arnold E. DiJoseph III of counsel), and Bloomberg, Steinberg & Bader for appellant.

I. The notice of claim herein fully complied with General Municipal Law § 50-e and provided defendant with ample information upon which to base an investigation of the accident. (Matter of Powell v Town of Gates, 36 AD2d 220 ; Widger v Central School Dist. No. 1, 18 NY2d 646 ; Rivero v City of New York, 290 NY 204 ; Purdy v City of New York, 193 NY 521 ; Maiello v City of New York, 103 Misc 2d 1064 ; DAlessandro v New York City Tr. Auth., 83 NY2d 891 ; Miles v City of New York, 173 AD2d 298 ; Cruz v City of New York, 95 AD2d 790 ; Evers v City of New York, 90 AD2d 786 ; Dillard v City of New York, 67 AD2d 878 .) II. The trial court erred in setting aside the verdict based upon an allegedly defective notice of claim, when in fact the location of the accident was a question of fact submitted to the jury for its determination, and thus the court below’s order of affirmance was also erroneous. (Weinreb v City of New York, 193 AD2d 596 ; Young v City of New York, 250 AD2d 383 ; Fidler v Rowe, 54 AD2d 1013 ; Blum v Fresh Grown Preserve Corp., 292 NY 241 ; Loewinthan v Le Vine, 299 NY 372 ; Brown v City of New York, 63 AD2d 635 , 47 NY2d 927 ; Kelly v Watson El. Co., 309 NY 49 ; Cohen v Hallmark Cards, 45 NY2d 493 ; Smolinsky v 46 Rampasture Owners, 230 AD2d 620 .) III. The nisi prius court erred in setting aside the verdict as against the weight of the evidence, and the court below’s affirmance was equally erroneous. (Scott v Brookdale Hosp. Ctr., 60 AD2d 647 ; Loewinthan v Le Vine, 299 NY 372 ; Serina v New York Rys. Corp., 266 NY 552 ; McDonald v Metropolitan St. R. R. Co., 167 NY 66 ; Davis v Caristo Constr. Corp., 19 AD2d 518 ; Siegfried v Kansas City Star Co., 193 F Supp 427 , 298 F2d 1 , 369 US 819 ; Andersen v Bee Line, 1 NY2d 169 ; Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376 ; Calabrese v County of Ontario, 58 AD2d 1008 ; Colegrove v City of Corning, 54 AD2d 1093 ; Lee v Lesniak, 40 AD2d 756 .) IV. Having set aside the verdict as against the weight of the evidence, the trial court and the court below were required to direct a new trial. (Imbrey v Prudential Ins. Co., 286 NY 434 ; Ryder v Cue Car Rental, 32 AD2d 143 ; Matter of De Kruyff [MVAIC], 20 AD2d 775 ; McDonald v Metropolitan St. Ry. Co., 167 NY 66 ; Buscaglia v Olka, 101 AD2d 713 ; McLeod v Marin, 54 AD2d 559 ; Muth v J & T Metal Prods. Co., 74 AD2d 898 ; Tennant v Peoria & Pekin Union Ry. Co., 321 US 29 .)

p. 391

Michael D. Hess, Corporation Counsel of New York City (Linda H. Young and Pamela Seider Dolgow of counsel), for respondent.

Plaintiffs complaint was properly dismissed because plaintiff did not notify the City in his notice of claim of the specific defect which he tried to prove at trial was the cause of his accident. (O’Brien v City of Syracuse, 54 NY2d 353 ; Davidson v Bronx Mun. Hosp., 64 NY2d 59 ; Adkins v City of New York, 43 NY2d 346 ; Altmayer v City of New York, 149 AD2d 638 ; Caselli v City of New York, 105 AD2d 251 ; Winbush v City of Mount Vernon, 306 NY 327 ; Archon v City of New York, 239 AD2d 371 ; Komecki v City of New York, 205 AD2d 665 ; Wilson v New York City Hous. Auth., 187 AD2d 260 , 81 NY2d 704 ; Setton v City of New York, 174 AD2d 723 .)

OPINION OF THE COURT

This appeal tests the sufficiency of a Notice of Claim required for suit against a municipality (General Municipal Law § 50-e). The Appellate Division, after a verdict in plaintiffs favor for personal injuries resulting from a fall on a New York City sidewalk, affirmed the trial court’s dismissal of the complaint on the ground that “plaintiff failed to notify the City in his notice of claim of the location of the defect which he claimed at trial was the cause of his accident” ( 265 AD2d 284 ). Concluding that notice was adequate, we now reverse.

Shortly after falling on a Brooklyn sidewalk, plaintiff served a Notice of Claim on the City, alleging:

“The accident occurred on December 2, 1993, at or about 11:00 a.m., when claimant sustained fractures to his right leg and ankle after tripping on a broken and defective portion of sidewalk and curb, located on West 33rd Street, approximately 65 feet and 7 inches south of the southwest corner of Mermaid Avenue and West 33rd Street, and 8 feet and 4 inches east from the lot line on the west side of West 33rd Street, in the County of Kings, City and State of New York. * * * The defective area is approximately eight inches wide and approximately 2 inches deep” (emphasis added).

Three pictures of the accident site — each containing a circle drawn around the curb that extended to include a small portion of the sidewalk — accompanied plaintiffs Notice of Claim, which additionally stated:

p. 392

“The photograph annexed hereto and designated as ‘V depicts the location of the aforesaid defective sidewalk and curb in relation to the southwest corner of Mermaid Avenue and West 33rd Street. The photograph annexed hereto and designated as ‘2’ depicts a closer view of the aforesaid defective sidewalk and curb. The photograph annexed hereto and designated as ‘3’ depicts a close up view of the aforesaid defective sidewalk and curb” (emphasis added).

At a hearing conducted pursuant to General Municipal Law § 50-h, which permits the City to examine a claimant “relative to the occurrence and extent of the injuries” (subd [1]), plaintiff testified that he fell after stepping on a broken sidewalk. At his deposition, and later at trial, plaintiff reconfirmed that he had never reached the curb and that he fell after he “stepped on [a] broken sidewalk.”

The evidence at trial established that the City had prior written notice of the sidewalk defect but not of any dangerous conditions associated with the curb. Thus, the Trial Judge instructed the jury that plaintiff could recover only if they found that he had fallen on the sidewalk (see, Administrative Code of City of NY § 7-201 [c]). The jury returned a verdict in plaintiffs favor, finding specifically that he had fallen on the sidewalk. The City moved to set aside the verdict, alleging among other grounds, that the Notice of Claim was defective. Supreme Court held that “by circling the defective curb on each of the photographs and giving precise measurements, to the inch, of the defect’s location and size, plaintiff [was] precluded from alleging at trial that it was a defective sidewalk rather than a defective curb that caused the accident.” The court additionally concluded the verdict was against the weight of the evidence. The Appellate Division affirmed solely on the ground that plaintiffs Notice of Claim was deficient in failing to notify the City of the location of the injury-causing defect. We now reverse and remit to the Appellate Division for consideration of additional issues not previously reached by that court.

To enable authorities to investigate, collect evidence and evaluate the merit of a claim, persons seeking to recover in tort against a municipality are required, as a precondition to suit, to serve a Notice of Claim (see, Winbush v City of Mount Vernon, 306 NY 327 , 333; Rivero v City of New York, 290 NY 204 , 208; Purdy v City of New York, 193 NY 521 , 523, rearg

p. 393

denied 195 NY 604 ; see also, Siegel, NY Prac § 32, at 35 [3d ed]). General Municipal Law § 50-e (2) (“Form of notice; contents”) requires, among other things, that a Notice of Claim “be in writing, sworn to by or on behalf of the claimant” and that it set forth:

“(1) the name and post-office address of each claimant, and of his attorney, if any; (2) the nature of the claim; (3) the time when, the place where and the manner in which the claim arose; and (4) the items of damage or injuries claimed to have been sustained so far as then practicable.”

Reasonably read, the statute does not require “those things to be stated with literal nicety or exactness” (Purdy v City of New York, supra, 193 NY, at 523 ; see also, Schwartz v City of New York, 250 NY 332 , 335). The test of the sufficiency of a Notice of Claim is merely “whether it includes information sufficient to enable the city to investigate” (see, O’Brien v City of Syracuse, 54 NY2d 353 , 358). “Nothing more may be required” (Schwartz v City of New York, supra, 250 NY, at 335 ). Thus, in determining compliance with the requirements of General Municipal Law § 50-e, courts should focus on the purpose served by a Notice of Claim: whether based on the claimant’s description municipal authorities can locate the place, fix the time and understand the nature of the accident (Purdy v City of New York, supra, 193 NY, at 524 ; Widger v Central School Dist. No. 1, 18 NY2d 646 , 648).

The City urges that, by circling the curb and not the immediately adjacent sidewalk, claimant rendered the Notice of Claim misleading because it “is not at all true that an examination of the curb * * * would necessarily have revealed the sidewalk condition.” To the contrary, plaintiffs Notice of Claim identified the accident site with particularity, fixing the location where he tripped “on a broken and defective portion of sidewalk and curb.” Indeed, his Notice of Claim mentions a “defective sidewalk” not once but four times. Although the circles centered on the curb and included only a small portion of the sidewalk, claimant’s repeated references to a “defective sidewalk” sufficiently put the City on notice that it was not only the curb but also the immediately adjacent sidewalk that caused his injuries, enabling timely investigation of his allegations (contrast, Harper v City of New York, 129 AD2d 770 , 771 [City prejudiced where Notice of Claim was not specific in describing accident location and plaintiff later materially

p. 394

contradicted herself]; Bacchus v City of New York, 134 AD2d 393 , 394 [City unable to promptly and adequately investigate accident location where Notice of Claim provided wrong side of street]; Krug v City of New York, 147 AD2d 449 , 449 [City deprived of opportunity to conduct proper investigation where Notice of Claim provided incorrect address]; Konsker v City of New York, 172 AD2d 361 , 361-362 [municipality unable to conduct proper investigation where Notice of Claim and complaint stated wrong location], lv denied 78 NY2d 858 ; Setton v City of New York, 174 AD2d 723 , 723 [City conducted investigation at wrong site based on misidentification of accident location in original Notice of Claim]; Wai Man Hui v Town of Oyster Bay, 267 AD2d 233 , 234 [municipality unable to locate accident site and conduct timely investigation], lv denied 94 NY2d 764 ).

A Notice of Claim serves an important public purpose, enabling authorities to promptly investigate the site of an alleged accident and assess municipal exposure to liability. Plaintiffs Notice plainly satisfied that purpose.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that court for further proceedings in accordance with this Opinion.

Judges Smith, Levine, Ciparick, Wesley and Rosenblatt concur.

Order reversed and case remitted to the Appellate Division, Second Department, for'consideration of issues raised but not determined on the appeal to that court.

Cases cited

Powell v. Town of Gates 36 AD2d 220 N.Y. App. Div. 1971-04-08 p. 390
Widger v. Central School District No.1 18 NY2d 646 N.Y. 1966-07-07 at 648 p. 390, p. 393
Rivero v. City of New York 290 NY 204 N.Y. 1943-04-15 at 208 p. 390, p. 392
Purdy v. City of New York 193 NY 521 N.Y. 1908-12-08 at 523 p. 390, p. 392
Maiello v. City of New York 103 Misc 2d 1064 N.Y. Civ. Ct. 1980-04-24 p. 390
D'Alessandro v. New York City Transit Authority 83 NY2d 891 N.Y. 1994-05-10 p. 390
Miles v. City of New York 173 AD2d 298 N.Y. App. Div. 1991-05-16 p. 390
Evers v. City of New York 90 AD2d 786 N.Y. App. Div. 1982-11-01 p. 390
Blum v. Fresh Grown Preserve Corp. 292 NY 241 N.Y. 1944-03-10 p. 390
Loewinthan v. Le Vine 299 NY 372 N.Y. 1949-07-19 p. 390
Brown v. City of New York 47 NY2d 927 N.Y. 1979-06-26 p. 390
Kelly v. Watson Elevator Co. 309 NY 49 N.Y. 1955-07-08 p. 390
Cohen v. Hallmark Cards, Inc. 45 NY2d 493 N.Y. 1978-10-31 p. 390
Smolinsky v. 46 Rampasture Owners, Inc. 230 AD2d 620 N.Y. App. Div. 1996-08-08 p. 390
Serina v. New York Railways Corp. 266 NY 552 N.Y. 1935-02-26 p. 390
McDonald v. Metropolitan Street Railway Co. 167 NY 66 N.Y. 1901-04-30 p. 390
Davis v. Caristo Construction Corp. 19 AD2d 518 N.Y. App. Div. 1963-05-14 p. 390
Andersen v. Bee Line, Inc. 1 NY2d 169 N.Y. 1956-04-27 p. 390
S. Kornblum Metals Co. v. Intsel Corp. 38 NY2d 376 N.Y. 1976-01-08 p. 390
Calabrese v. County of Ontario 58 AD2d 1008 N.Y. App. Div. 1977-07-12 p. 390
Colegrove v. City of Corning 54 AD2d 1093 N.Y. App. Div. 1976-11-05 p. 390
Imbrey v. Prudential Insurance Co. of America 286 NY 434 N.Y. 1941-07-29 p. 390
Ryder v. Cue Car Rental, Inc. 32 AD2d 143 N.Y. App. Div. 1969-05-15 p. 390
In re the Arbitration between De Kruyff & Motor Vehicle Accident Indemnification Corp. 20 AD2d 775 N.Y. App. Div. 1964-03-19 p. 390
Tennant v. Peoria & Pekin Union Railway Co. 321 US 29 SCOTUS 1944-01-17 p. 390
O'Brien v. City of Syracuse 54 NY2d 353 N.Y. 1981-11-19 at 358 p. 391, p. 393
Davidson v. Bronx Municipal Hospital 64 NY2d 59 N.Y. 1984-12-20 p. 391
Adkins v. City of New York 43 NY2d 346 N.Y. 1977-12-21 p. 391
Altmayer v. City of New York 149 AD2d 638 N.Y. App. Div. 1989-04-24 p. 391
Caselli v. City of New York 105 AD2d 251 N.Y. App. Div. 1984-12-31 p. 391
Winbush v. City of Mount Vernon 306 NY 327 N.Y. 1954-03-04 at 333 p. 391, p. 392
Archon v. City of New York 239 AD2d 371 N.Y. App. Div. 1997-05-12 p. 391
Kornecki v. City of New York 205 AD2d 665 N.Y. App. Div. 1994-06-20 p. 391
Wilson v. New York City Housing Authority 187 AD2d 260 N.Y. App. Div. 1992-11-05 p. 391
Setton v. City of New York 174 AD2d 723 N.Y. App. Div. 1991-06-24 at 723 p. 391, p. 394
Corbett v. Fleming 195 NY 604 N.Y. 1908-06-08 p. 393
Schwartz v. City of New York 250 NY 332 N.Y. 1929-02-13 at 335 p. 393
Harper v. City of New York 129 AD2d 770 N.Y. App. Div. 1987-04-27 at 771 p. 393
Bacchus v. City of New York 134 AD2d 393 N.Y. App. Div. 1987-11-16 at 394 p. 394
Krug v. City of New York 147 AD2d 449 N.Y. App. Div. 1989-02-06 at 449 p. 394
Konsker v. City of New York 172 AD2d 361 N.Y. App. Div. 1991-04-23 at 361-362 p. 394

Statutes and regulations cited

General Municipal Law p. 390, p. 391, p. 392, p. 393