New York City Pothole Laws
Falling on the New York City Sidewalks
New York City's sidewalks, like many of the cities in the Northeast suffer from potholes. Potholes are a type of urban acne caused by the freeze - thaw cycle. A crack develops on the sidewalk, if unattended for any period of time it will eventually absorb water. During the course of the winter the water freezes. As water freezes it expands and the crack widens. During thaws the now larger crack absorbs more water and when it freezes again it expands further. Additional cracks and holes develop as sidewalk plates are pushed up by tree roots, or by delivery vehicles parking on the sidewalks.
Historically, the City was responsible to the public if an injury occurred as a result of someone tripping in one of these defects. In 1974 then Mayor Ed Koch had a local ordinance passed which required the injured person to prove that the City of New York's Department of Transportation had PRIOR WRITTEN NOTICE of the specific defect which caused the injury. An almost impossible hurdle to overcome. What this did was to allow the City to act negligently in failing to repair defects in a timely and a professional manner and still escape liability for their inaction.
In order to balance such an inequity the New York State Trial Lawyers Association formed the Big Apple Pothole Protective Committee. A mapping company was hired to survey all of the sidewalks and crosswalks in Manhattan, The Bronx, Queens, Brooklyn and Staten Island and map those defects on a document which was filed with the New York City Department of Transportation. This gave the City PRIOR WRITTEN NOTICE of the existence of the defect. The mapping was done annually and tens of thousands of defects were reported.
Mayor Koch suggested that it was reasonable to request the written notice so that the City would be alerted to the existence of a specific defect and then could make the repair in a reasonable fashion. Not surprisingly, nothing was done to remedy the situation and as president of Big Apple I was given the quote of the day in the New York Times when I stated that, "some of the potholes are so old that I was thinking of giving one a Bar Mitzvah". Indeed, we had some defects on filed maps which were 13 years old. They started out as a crack and developed into a major defect over time. The maps followed the enlargement of the defect over time. These defects were citywide with one of the most glaring defects adjacent to City Hall. This defect was not corrected until major security changes were put into effect effectively fencing in City Hall, once known as the "People's City Hall", because of it's accessibility to the public, by Mayor Guilliani.
In 2003 Mayor Bloomberg passed NYC Administrative Code Section 7-210 which removed the City from primary responsibility for sidewalk cases in many situations. By in large the abutting land owner is now primarily responsible to a party who falls on the sidewalk. There are, however, two notable exceptions. First, where the City is itself a land owner. Second, where the abutting building is a 1-3 family home which is, in whole or in part, occupied by the owner and used exclusively for residential purposes.
With this new code in place, Big Apple no longer maps sidewalk and crosswalk defects. If the abutting owner of the property is primarily responsible for the sidewalk an injured party is not required to give them WRITTEN notice of the defect. As with any land owner, constructive rather then actual notice is required. Actual notice would be written notice or some other proof that the land owner actually knew of the condition for a sufficiently long period of time to have done something about it. Constructive Notice merely requires proof that the condition existed for a sufficiently long period of time for any reasonable land owner to have known of the defect.
Big Apple Pothole Sidewalk Defect Maps
Big Apple maps are still available to show that defects existed through 2003. These maps along with photos taken at the time of the accident prove constructive notice sufficient to bring the law suit against the abutting owner.
The City is still primary for pot holes in the roadways and crosswalks. In these situations prior WRITTEN notice is still required. Often the City is on the hook because there are written complaints about these defects sent by local community boards, neighborhood benevolent societies and previous claims filed by earlier accident victims. The City of New York is required to maintain log books by location of each notice of claim it receives as they relate to a road, cross walk or sidewalk. By your attorney checking the log book it may be determine if the defect that caused the fall was the cause of a previous fall resulting in a claim.
Can I Sue NY City for a Pothole Accident Injury?
Procedures for Filing a Suit Against the City of New York
There are many hoops to jump through before you can file a successful suit against the City of New York. Assuming that you can show prior written notice you must next file a document called NOTICE OF CLAIM against the City. This document must contain certain specifics, See Municipal Liability/Municipal Accidents. The Notice of Claim must be filed with the New York City Department of Law within 90 days of the date of the accident. The City can then take a formal statement under oath from the injured person and submit that person to a medical examination by a doctor of their own choosing. Only then can a complaint be filed and the lawsuit begun, and this must be done within one year and 90 days of the accident.
How to Protect Your Rights If You Fall on a Sidewalk
We all feel very foolish when we trip and fall to the ground. However, if you are injured you must take the following precautions to protect your interests.
1. Get immediate and prompt medical assistance. Call 911 immediately and an ambulance and police officer will be dispatched
2. Make a mental note of what caused you to trip. Was it a raised flag of side walk, a hole, a crack, the stub of a sign post, a defective curb, a depressed storm drain at the corner?
3. Most visitors to the City have cameras with them. Use them to take a photo of the defect. Everyone carries a cell phone these days and most cell phones have a camera. Take a picture, while the quality will be less than perfect, it will serve the purpose of memorializing the defect until you retain counsel and professional photographs are taken.
4. Get the names, address and phone numbers of any witnesses.
The call to 911 is obvious and smart. It will get you the help you need in a remarkably short period of time. However, it also serves to memorialize the date and time and location of the accident. It serves to independently prove that you in fact fell at the location you have claimed. Without such independent verification you really have no way of proving that the accident happened where you claim. The abutting land owner or the City of New York can always allege that you fell in your home and not in front of his property. Completing your chores and then going to the hospital by cab will not provide the independent proof needed. The police are required to complete official accident or incident reports which become public records. Similarly, the EMS ambulance attendants must complete reports which are location, injury and time specific.
While each of us believe that we are indestructible, the reality is quite different. What may at first seem to be a simple twisted ankle can turn out to be a torn ligament or worse. It is always best to get immediate professional opinion at one of the many quality hospitals in New York City.
The (NYC) New York pedestrian accident attorneys of Tolmage, Peskin, Harris & Falick represents clients in all five boroughs of New York (NY): Manhattan/New York County, Staten Island, Queens, Brooklyn/Kings County, and the Bronx, as well as Suffolk County, Nassau County/Long Island, Westchester County, Rockland County, Harlem, and the remainder of the State of New York.