This action was commenced to recover monetary damages for injuries allegedly sustained by plaintiff BARBARA SULLIVAN (hereinafter "plaintiff") on May 4, 2002, when she tripped and fell over a metal bolt or screw protruding from the sidewalk along Central Avenue between Hyatt Street and Slosson Terrace in Staten Island, New York.

In moving for summary judgment pursuant to CPLR 3212 and/or dismissal of the complaint pursuant to CPLR 3211(a)(7), defendant THE CITY OF NEW YORK (hereinafter THE CITY) contends that plaintiffs have failed to prove compliance with the prior written notice requirement of [*2]section 7-201 of the Administrative Code of the City of New York, or that the alleged sidewalk defect was caused or created by THE CITY.

In support, THE CITY points out that prior written notice is a statutory condition precedent to a personal injury action against it, and that the absence of same constitutes a bar to the action. Here, THE CITY contends that following the commencement of this action, a search of its records was performed for any and all applications, permits, repair orders, violations, contracts and/or other written complaints regarding the subject location for a period of two years prior to the accident, and that no pertinent records were found. In addition, a search of the most recent Big Apple Map by THE CITY's Department of Transportation Litigation Services (DOT) yielded no report of any such defect at the subject location.

In opposition, plaintiff contends that while the Big Apple Map does not specifically indicate the presence of an obstruction protruding from the sidewalk, it does indicate an "extended section of raised or uneven sidewalk" at the location of plaintiff's fall. According to plaintiff, such notice in the area of her fall should suffice to satisfy the prior written notice requirement. In this respect, plaintiff notes that her deposition testimony places the site of the injury in the exact location of the area of "uneven sidewalk" noted on the Big Apple Map. Finally, plaintiff contends that the mere

fact that her description of the defect varies from that indicated on the Big Apple Map raises a triable issue as to the precise nature of the defect which caused her to fall.

It is without dispute that the proponent of a motion for summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hosp., 68 NY2d 320). Here, it is the opinion of this Court that THE CITY has met its burden, and that plaintiff has failed to raise a triable issue of material fact (see Rotuba Extruders v. Ceppos, 46 NY2d 223, 231).

It is familiar law that prior written notice of a sidewalk defect is a condition precedent which must be pleaded and proved in order to maintain an action against THE CITY under section 7-201 of the Administrative Code (see Amabile v. City of Buffalo, 93 NY2d 471, 472-473). Moreover, it must be shown that THE CITY failed to repair the alleged defect within 15 days after receiving notice of the condition (see Weinreb v. City of New York, 193 AD2d 596). While the Administrative Code fails to set forth any particular requirements for the specificity of such notice (see Pantane v. The City of New York, 284 AD2d 513), it is well settled that notations appearing on a Big Apple map filed with the New York City Department of Transportation may serve as prior written notice of the defective conditions indicated thereon (see Acevedo v. City of New York, 128 AD2d 488, 489). Nevertheless, it is well established that the notice relied upon must bring the "particular condition at issue" to the attention of the authorities (Holt v. County of Tioga, 95 AD2d 934, 935 [internal quotation marks and citation omitted]).

Here, the Big Apple Map submitted by THE CITY clearly depicts the existence of an "extended section of raised or uneven sidewalk" at the presumed site of plaintiff's fall. However, [*3]plaintiff described the alleged condition as a "protruding metal bolt or screw on the sidewalk" in both her Notice of Claim and at her EBT. In addition, the photographs submitted by plaintiff clearly identify the defect in question as a metal bolt protruding from the sidewalk. Based on this proof, the portion of raised or uneven sidewalk depicted on the Big Apple Map cannot be said to provide THE CITY with prior notice of the defect in question, particularly in view of the fact that a separate marking is provided for an "obstruction protruding from the sidewalk". That symbol does not appear on the map. While in some cases, a factual dispute regarding the existence of notice may present a jury question (see e.g. Vertsberger v. City of New York, 34 AD3d 453), it is the opinion of this Court that this is not such a case. Nor does THE CITY's issuance of work permits constitute prior written notice of the alleged defect which caused plaintiff's fall (see Meltzer v. City of New York, 156 AD2d 124).

Finally, plaintiffs have failed to present any proof establishing that THE CITY caused or created the alleged defect.

Accordingly, it is

ORDERED that defendant's motion for summary judgment and/or dismissal of the complaint is granted, and the complaint is dismissed; and it is further

ORDERED that the Clerk enter judgment accordingly.

The foregoing constitutes the Decision and Order of the Court.

Law Clerk to notify all parties of the Decision/Order.

DATED: APR 02 2007/s/

HON. THOMAS P. ALIOTTA, J.S.C.

ALL SIDES NOTIFIED BY EVE/pt ON