Cohen v. City of New York
Docket 2024-06592
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02627
- Docket
- 2024-06592
Appeal from an order granting the City of New York's motion for summary judgment dismissing the amended complaint in a personal-injury action
Summary
The Appellate Division, Second Department affirmed the Supreme Court's order granting the City of New York's motion for summary judgment dismissing the plaintiff's personal-injury claim. The plaintiff said she tripped in a pothole in a crosswalk; the City showed it had no prior written notice of the specific defect under the City's Pothole Law. The court found the Big Apple map entries did not put the City on notice of a defect at the exact location of the fall, and the plaintiff did not raise a triable issue that the City created the defect or that an exception applied.
Issues Decided
- Whether the City had prior written notice of the alleged roadway defect under Administrative Code § 7-201(c)(2)
- Whether a Big Apple map entry provided prior written notice of the specific defect where the plaintiff fell
- Whether the plaintiff raised a triable issue that the City affirmatively created the defect or that an exception to the notice requirement applied
Court's Reasoning
Under the City Administrative Code and controlling precedents, the City is liable for street defects only when it had prior written notice of the specific hazard. The City demonstrated through Department of Transportation records and Big Apple map searches that it lacked prior written notice of a defect at the exact location where the plaintiff fell. Because the map entry did not correspond to the plaintiff's alleged location and the plaintiff did not produce evidence the City created the defect or that an exception applied, there remained no triable issue of fact to defeat summary judgment.
Authorities Cited
- Administrative Code of the City of New York § 7-201(c)
- Katz v City of New York87 NY2d 241
- D'Onofrio v City of New York11 NY3d 581
- Nieves v City of New York216 AD3d 800
Parties
- Appellant
- Ziva Cohen
- Respondent
- City of New York
- Attorney
- Feiner & Lavy, P.C. (Richard G. Monaco of counsel)
- Attorney
- Steven Banks, Corporation Counsel (Jamison Davies and Elizabeth I. Freedman of counsel)
- Judge
- Colleen D. Duffy, J.P.
- Judge
- William G. Ford
- Judge
- Donna-Marie E. Golia
- Judge
- Susan Quirk
Key Dates
- Complaint filed (original action year)
- 2016-01-01
- Order granting summary judgment
- 2024-02-28
- Appellate decision
- 2026-04-29
What You Should Do Next
- 1
Consider further appeal
If there are grounds, consult counsel about whether to seek leave to appeal to the Court of Appeals or file any permitted post-judgment motions within applicable deadlines.
- 2
Evaluate claims against other defendants
If other defendants remain, review the record and consider pursuing trial or settlement against them based on available evidence.
- 3
Review trial record for location evidence
Work with counsel to identify any precise location evidence or witnesses that could have created a triable issue regarding notice or creation of the defect for future proceedings.
Frequently Asked Questions
- What did the court decide?
- The court affirmed dismissal of the plaintiff's claim against the City because the City proved it had no prior written notice of a defect at the exact place where the plaintiff fell, and the plaintiff did not show an exception to the notice rule.
- Who is affected by this decision?
- The plaintiff (Ziva Cohen) is affected because her claim against the City was dismissed; the City benefits from the affirmed judgment.
- Why didn't the Big Apple map work as notice?
- The court found the defect shown on the Big Apple map was not at the same precise location where the plaintiff fell, so it did not constitute prior written notice to the City for that specific hazard.
- What happens next for the plaintiff?
- The plaintiff may consider other defendants still in the case or seek further appellate relief if available, but the claim against the City is resolved in the City's favor.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Cohen v City of New York - 2026 NY Slip Op 02627 Cohen v City of New York 2026 NY Slip Op 02627 April 29, 2026 Appellate Division, Second Department Ziva Cohen, appellant, v City of New York, respondent, et al., defendant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on April 29, 2026 2024-06592, (Index No. 500016/16) Colleen D. Duffy, J.P. William G. Ford Donna-Marie E. Golia Susan Quirk, JJ. Feiner & Lavy, P.C., New York, NY (Richard G. Monaco of counsel), for appellant. Steven Banks, Corporation Counsel, New York, NY (Jamison Davies and Elizabeth I. Freedman of counsel), for respondent. DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated February 28, 2024. The order granted the motion of the defendant City of New York for summary judgment dismissing the amended complaint insofar as asserted against it. ORDERED that the order is affirmed, with costs. In 2016, the plaintiff commenced this action against, inter alia, the defendant City of New York (hereinafter the City) to recover damages for personal injuries she alleged she sustained when she tripped and fell in a pothole in a crosswalk while crossing East 24th Street at its intersection with Avenue O in Brooklyn. Following discovery, the City moved for summary judgment dismissing the amended complaint insofar as asserted against it, contending that it did not have the requisite prior written notice of the hazard ( see Administrative Code of City of NY § 7-201[c][2]). The plaintiff opposed. In an order dated February 28, 2024, the Supreme Court granted the City's motion. The plaintiff appeals. "Administrative Code of the City of New York § 7-201(c) limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location" ( Katz v City of New York , 87 NY2d 241, 243; see Cuccia v City of New York , 22 AD3d 516, 516). Where the City establishes that it lacked prior written notice under the Pothole Law (Administrative Code § 7-201[c][2]), "the burden shifts to the plaintiff to demonstrate the applicability of one of two recognized exceptions to the rule—that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality" ( Yarborough v City of New York , 10 NY3d 726, 728; see Goodman v City of New York , 230 AD3d 1115, 1116-1117). Thus, to be entitled to summary judgment, the City must first establish that it lacked prior written notice of the alleged defect ( see Goodman v City of New York , 230 AD3d at 1116-1117; Canaday v Village of Wappingers Falls , 220 AD3d 731, 732). Once that showing is made, the burden shifts to the plaintiff to demonstrate that the City affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit ( see Goodman v City of New York , 230 AD3d at 1116-1117; Canaday v Village of Wappingers Falls , 220 AD3d at 732). Maps prepared by Big Apple Pothole and Sidewalk Protection Corporation (hereinafter Big Apple) and filed with the City Department of Transportation serve as prior written notice of defective conditions depicted thereon ( see Katz v City of New York , 87 NY2d at 243; Nieves v City of New York , 216 AD3d 800, 801). "Big Apple is a corporation established by the New York State Trial Lawyers Association for the purpose of giving notices in compliance with the Pothole Law" ( D'Onofrio v City of New York , 11 NY3d 581, 584; see Nieves v City of New York , 216 AD3d at 801). "It does so through maps on which coded symbols are entered to represent defects" ( D'Onofrio v City of New York , 11 NY3d at 584; see Nieves v City of New York , 216 AD3d at 801). Here, the City established its prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against it by demonstrating, through a search of the City Department of Transportation records and maps served on the City Department of Transportation by Big Apple, that the City did not receive prior written notice of the alleged defect which caused the plaintiff's fall ( see Nieves v City of New York , 216 AD3d at 801; Cuccia v City of New York , 22 AD3d at 516). Contrary to the plaintiff's contention, the defect shown on the relevant Big Apple map was not in the same location as the location alleged by the plaintiff where her fall occurred, and, therefore, the map did not provide the City prior written notice ( see Nieves v City of New York , 216 AD3d at 801-802; Cuccia v City of New York , 22 AD3d at 516). In opposition, the plaintiff failed to raise a triable issue of fact, inter alia, as to whether the City had prior written notice of the alleged defect or whether the City affirmatively created the alleged defect ( see Goodman v City of New York , 230 AD3d at 1117; Amer v City of New York , 166 AD3d 571, 572). Accordingly, the Supreme Court properly granted the City's motion for summary judgment dismissing the amended complaint insofar as asserted against it . DUFFY, J.P., FORD, GOLIA and QUIRK, JJ., concur. ENTER: Darrell M. Joseph