Plaintiffs' Verified Complaint alleges that, on October 11, 2006, plaintiff Elaine Stone "was caused to trip upon a defect in the sidewalk" in front of 14 Willow Place, Brooklyn, property owned by defendant Benjamin A. Bankson. (See Verified Complaint, ¶ ¶ 3, 23.) The City of New York is also a defendant.

The alleged defect is described as "a raised edge of a sidewalk concrete flag and the raised portion of the flag which was located in the pedestrian portion of the sidewalk located approximately 140 feet south of the south curb of Joralemon Street and approximately 2.5 to 3 feet west of the west curb of Willow Place and next to a large tree situated next to the said curb of Willow Place in front of premises 14 Willow Place, Brooklyn, New York, which sidewalk flag was protruding up approximately 3 inches from the rest of the walk on the date concerned." (Id., ¶ 34.) Attached as an exhibit to the Verified Complaint are "photographs of the area showing the defect, the afore-referenced tree and curb line, and the front facade of the premises located at 14 Willow Place." (Id., ¶ 35, Exhibit E.)

With this motion, designated a "Motion for Issue Determination," Plaintiffs seek an order "pursuant to New York City Administrative Code § 7-201 (c) (2) . . . determining that the prior Notice of Claim and litigation concerning the same location of the incident to the Plaintiff does constitute prior written notice of a defective condition in accordance with such statute, and . . . that the condition precedent of Prior Notice has been met by the Plaintiff, and . . . for such other and further relief as the Court deems proper and just." (Notice of Motion for Issue Determination dated July 16, 2007.) [*2]

Pursuant to the Administrative Code of the City of New York § 7-201 (c) (2), known as the "Pothole Law" (see Bruni v City of New York, 2 NY3d 319, 324 [2004]), "[t]he City is not liable for a defect in or obstruction to a sidewalk or roadway unless it had received written notice of the condition at least 15 days prior to the occurrence and failed to remedy it" (see Min Whon Ock v City of New York, 34 AD3d 542, 542 [2d Dept 2006].) Indeed, "prior written notice of a defect is a condition precedent which plaintiff is required to plead and prove to maintain an action against the City." (Katz v City of New York, 87 NY2d 241, 243 [1995].)

More precisely, "the law lists three alternative prerequisites to an action: (1) written notice . . . actually given to the commissioner of transportation' or his designee; (2) previous injury to person or property . . . and written notice given to a city agency'; or (3) written acknowledgment from the city of the defective, unsafe, dangerous or obstructed condition'." (See Bruni v City of New York, 2 NY3d at 324 [quoting Administrative Code § 7-201 (c) (2)].) Although the three alternatives are somewhat different in language and concept, they all serve the "same function - - to demonstrate that the responsible city agency knew of the hazard and had an opportunity to remedy it." (See id., at 327.)

Since Plaintiff's fall occurred after September 14, 2003, it is governed by the New Sidewalk Law (see Administrative Code of the City of New York § 7-210; see also Faulk v City of New York, 16 Misc 3d 1108 [A], 2007 NY Slip Op 51346 [U], * 2 [Sup Ct, Kings County].) Generally, where the property abutting a sidewalk is used for commercial purposes, as is the property at 14 Willow Place, the New Sidewalk Law transfers from the City to the owner of the abutting property liability arising from "the failure . . . to maintain [the] sidewalk," including "the negligent failure to install, construct, reconstruct, repave, repair or replace defective sidewalk flags" (see Administrative Code § 7-210 [b]), while the City remains liable for injury or damage caused by a dangerous condition that the City created through affirmative negligence or its special use of the sidewalk (see Faulk v City of New York, 2007 NY Slip Op 51346 [U], at * 2- * 3.)

The parties here are clearly proceeding on the assumption that the Pothole Law requires prior written notice in this case, notwithstanding the New Sidewalk Law (see also Administrative Code § 7-210 [d]), and the Court will do likewise on this motion. Plaintiffs' Verified Complaint alleges compliance with the Pothole Law by way of two of the three alternatives specified in the statute - - namely, a "Big Apple Map" filed with the Department of Transportation on October 23, 2002 (see Katz v City of New York, 87 NY2d at 243); and a notice of claim served on the City by Catherine Kelly and John E. Kelly, together with a related Supreme Court action, alleging injury by reason of a dangerous condition on the sidewalk in front of 14 Willow Place. (See Verified Complaint, ¶ ¶ 13-20.) The City's Answer denies in material respects these allegations of prior written notice. (See Answer, ¶ ¶ 1, 3.)

This motion concerns only a Supplemental Notice of Claim dated March 8, 2002, signed by Catherine Kelly and John E. Kelly, and date-stamped "Received City of New York" on March 13, 2002. The Kelly Notice of Claim alleges that, on February 1, 2002, "in front of 14 Willow Place, Brooklyn, New York, claimant Catherine Kelly was caused to trip and fall upon a [*3]defective, hazardous, raised, and uneven sidewalk at said location." The Kelly Notice of Claim contains no further description of the nature or location of the condition causing the claimant's fall, and nothing more is proffered on this motion that would elaborate on the quoted description of the condition. Plaintiffs contend, in effect, that the Kelly Notice of Claim satisfies the prior-written-notice condition of Administrative Code § 7-201 (c) (2).

The City, for its part, makes procedural and evidentiary objections to Plaintiffs' motion, in addition to addressing its merits. Procedurally, the City asserts that "because the Notice of Motion fails to state or identify a CPLR statute allowing the relief sought herein, it should be denied outright." (Affirmation in Opposition, ¶ 2.) Interestingly, the City itself cites no authority for its assertion, but presumably it is based on the requirement found in CPLR 2214 (a) that a notice of motion "specify . . . the relief demanded and the grounds therefor." The City acknowledges, however, that the "motion essentially seeks a declaration from this Court that, as a matter of law and fact, the City had prior written notice of the allegedly defective condition, which gave rise to the instant negligence action," and makes clear that it understands the motion as seeking partial summary judgment. (See id., ¶ ¶ 2-4, 7, 9-12.)

It is undoubtedly "better practice to specify the appropriate section or rule under which a motion is made" (see Bernstein's Duck Farm v Town of Brookhaven, 21 Misc 2d 953, 953 [SupCt, Suffolk County1947]), and it may be necessary so that the other party is put "on notice of the requirement applicable to one who opposes a motion for summary judgment that [it] bare and reveal [its] proofs" (see Rubin v Rubin, 72 AD2d 536, 537 [2d Dept 1979].) But where, as here, there is no misunderstanding or prejudice, "a court may grant relief that is warranted by the facts plainly appearing on the papers on both sides." (See Frankel v Stavsky, 40 AD3d 918, 918-19 [2d Dept 2007]; HCE Assocs. v 3000 Watermill Lane Realty Corp., 173 AD2d 774, 744-75 [2d Dept 1991]; Pace v Perk, 81 AD2d 444, 456 [2d Dept 1981].)

The issue presented by this motion, satisfaction of the prior-written-notice condition of Administrative Code § 7-201 (c) (2), is particularly suited to summary disposition in appropriate cases. Indeed, as will appear below, the City and other beneficiaries of a prior-written-notice law regularly move for a summary determination of the issue. (See also Faulk v City of New York, 2007 NY Slip Op 51346 [U], at * 6- * 7.) That a ruling on the issue in favor of the City will result in dismissal of the action, whereas the plaintiff, depending on the circumstances, must still prove liability and damages, does not make a summary determination unavailable to the plaintiff. The statute expressly authorizes judgment on the issue where otherwise appropriate, whether the issue is considered one of law or fact (see CPLR 3212 [e], [g]), and considerations of efficiency, the courts' as well as the parties', might be served by its resolution sooner rather than later.

On the evidentiary front, the City contends that Plaintiffs "failed to submit evidence in admissible form as required by CPLR 3212 (b) and binding judicial authority"; specifically, the Kelly Notice of Claim "is not in admissible form and must be disregarded by the Court." (Affirmation in Opposition, ¶ 11.) The City does not further detail its evidentiary objection, but there is no question that the Kelly Notice of Claim has not been put before the Court by the [*4]affidavit or certificate of any person, such as a public officer. (See CPLR 4518 [c], CPLR 4520, CPLR 4540.)

Plaintiffs obtained the Kelly Notice of Claim through a request made pursuant to the Freedom of Information Law ("FOIL") (Public Officers Law, Article 6, § 84 et seq.) The papers on this motion include a copy of a letter dated November 21, 2006 on the letterhead of the Office of the Comptroller, City of New York, from a Confidential Investigator to Plaintiffs' counsel; a copy of the Kelly Notice of Claim; Plaintiffs' Notice to Admit to defendant City; and the City's Response to Notice to Admit. The letter refers to the FOIL request and "Prior Notice of Claim and Notice of Claim regarding Willow Place between Joralemon Street and State Street, specifically 14 Willow Place"; states that "a diligent search was conducted by the Comptroller's Bureau of Law and Adjustment (BLA) to determine the number of claims filed with this office alleging accidents occurring at the subject location"; states further that the writer was "informed by BLA that our office is in possession of one notice of claim" responsive to the request; and encloses a copy of that notice of claim, without further describing it.

Plaintiffs' Notice to Admit requests an admission that an attached exhibit consisting of the letter and notice of claim is "a true copy of a letter dated November 21, 2006 and its attachment issued by The City of New York, Office of the Comptroller pursuant to a Freedom of Information Law Request." (Notice to Admit dated June 6, 2007, ¶ 1.) A notice to admit appropriately requests admission "of the genuineness of any papers or documents." (See CPLR 3123 [a].) The City provides the requested admission (see Response to Notice to Admit dated June 28, 2007, ¶ 1), which the Court considers sufficient to authenticate the letter and the Kelly Notice of Claim as its attachment.

Plaintiffs' Notice to Admit also requests an admission that the City "by reason of the Supplemental Notice of Claim as attached to the aforesaid letter had notice as of March 13, 2002 of an alleged defective condition described and located according to the terms of the Supplemental Notice of Claim." (Notice to Admit, ¶ 2.) It is not at all clear what Plaintiffs intended for admission by this second request beyond the authentication of the documents subject to the first request. (See Response to Notice to Admit, ¶ 1.) If the intention was to elicit an admission that the Kelly Notice of Claim satisfied the condition precedent to Plaintiffs' claim, Plaintiffs were not appropriately requesting admission of "the truth of any matter [ ] of fact . . . as to which . . . [they could] reasonably believe[ ] there can be no substantial dispute at the trial" (see CPLR 3123 [a].) In any event, the City appropriately denied the request, even though it was not fully correct in its stated reasons.

Having provided authentication of the letter and its enclosure, however, does not in itself render them admissible as evidence. Both writings are out-of-court statements that must be shown either not to constitute hearsay, or to be subject to some exception to the hearsay rule. The Court has not found any judicial authority addressing the admissibility of responses to FOIL requests. Those responses would include the statement of a public officer that certain documents were found on a search of an agency's records, as well as copies of the documents retrieved, or a statement that no documents were found after diligent search. [*5]

Here, Plaintiffs seek to admit as evidence the Kelly Notice of Claim, as well as the statement of the author of the November 21, 2006 letter that it was found among the records of the Office of the Comptroller. CPLR 4520, designated "certificate or affidavit of public officer," is one vehicle for putting before the court a record of "a fact ascertained, or an act performed, by [a public officer] in the course of his official duty" (see CPLR 4520.) Even assuming, however, that the letter response to Plaintiffs' FOIL request may qualify as a "certificate" for purposes of CPLR 4520 (see Matter of Rattley v New York City Police Dept., 96 NY2d 873, 875 [2001]; People v Michaels, 174 Misc 2d 982, 984 [Crim Ct, Richmond County 1997]), the Court cannot find in the FOIL or implementing regulations (see Public Officers Law § 87 [2], § 89 [3]; 21 NYCRR § 1401.1, § 1401.2) any requirement that the "certificate" be "file[d] or deposit[ed] . . . in a public office of the state" (see CPLR 4520.) Also problematic, the November 21, 2006 response letter does not appear to reflect "a fact ascertained, or an act performed" by its author, other than communicating with the person or persons who actually searched the agency's records.

CPLR 4520 is not the sole vehicle, however, for admitting so-called "public records" into evidence; there is a "common-law hearsay exception rule for official written statements, which is much broader in scope" than CPLR 4520, and "has not been superseded" by it. (See Consolidated Midland Corp. v Columbia Pharmaceutical Corp., 42 AD2d 601, 601 [2d Dept 1973].) Unlike writings admitted pursuant to CPLR 4520, however, which are "prima facie evidence of the facts stated" (see CPLR 4520), writings admitted pursuant to the common-law exception are "merely some evidence which the trier of the facts is free to disbelieve even though the adverse party offers no evidence on the point." (See Consolidated Midland Corp. v Columbia Pharmaceutical Corp., 42 AD2d at 601.) One federal court has characterized the foundational requirements for admission under the common-law exception as "unexacting." (See Garcia v Portuondo, 459 FSupp2d 267, 282 [SDNY 2006].)

"When a public officer is required or authorized, by statute or nature of the duty of the office, to keep records or to make reports of acts or transactions occurring in the course of the official duty, the records or reports so made by or under the supervision of the public officer are admissible in evidence." (People v Smith, 258 AD2d 245, 248 [4th Dept 1999] [quoting Prince, Richardson on Evidence § 8-1101, at 688 (Farrell 11th ed)]; see also People v Nisonoff, 293 NY 597, 603-04 [1944]; People ex rel. Stone v Minck, 21 NY 539, 541 [1860]; Richards v Robin, 178 AD 535, 539 [1st Dept 1917].) The exception is "founded upon a public official's lack of motive to distort the truth when recording a fact or event in discharge of public duty." (People v Garneau, 120 AD2d 112, 116 [4th Dept 1986.)

The report of a search of public records made in response to a FOIL request, mandated by that statute and its regulations (see Public Officers Law § 87 [2], § 89 [3]; 21 NYCRR § 1401.1, § 1401.2), clearly falls within the articulated scope of the common-law exception. Unlike CPLR 4520, there is no stated requirement that the writing be "file[d] or deposit[ed] . . . in a public office" (see CPLR 4520), although the absence of a requirement for filing seems to have been important to some judges (see Neuschotz v Newsday, Inc., 12 Misc 3d 1198 [A], 2006 NY Slip Op 51626 [U], * 5 [Sup Ct, Kings County]; People v D'Agostino, 120 Misc 2d 437, 442 [County [*6]Ct, Monroe County 1983].) Interestingly, CPLR 4521, designated "lack of record," and also relevant to FOIL searches, contains no filing or deposit requirement. It provides that "[a] statement signed by an officer . . . having legal custody of specified official records . . . that he has made diligent search of the records and has found no record or entry of a specified nature, is prima facie evidence that the records contain no such record or entry." (See CPLR 4521.) That provision, too, has common-law origins. (See Deshong v City of New York, 176 NY 475 485 [1903]; Jackson v Miller, 6 Cow 751, 753-54 [Sup Ct 1827], aff'd 6 Wend 228 [1830].)

What of the fact that the author of the FOIL response here apparently did not make the search of the records? First, there appears to be no "personal knowledge" requirement for applicability of the common-law hearsay exception for official written statements. Like the business records exception, lack of personal knowledge should be considered on the weight, and not the admissibility, of the writing when the other foundation indicia of reliability are present. (See CPLR 4518 [a].) As to a FOIL response in particular, "[n]either a detailed description of the search nor a personal statement from the person who actually conducted the search is required." (Matter of Rattley v New York City Police Dept., 96 NY2d at 875.)

Where, moreover, the FOIL response is offered against the party who made it, it should be deemed admissible pursuant to the party admission exception to the hearsay rule. (See Loschiavo v Port Auth. of NY & N.J., 58 NY2d 1040, 1041 [1983].) "[T]he hearsay statement of an agent is admissible against his employer under the admissions exception to the hearsay rule only if the making of the statement is an activity within the scope of his authority." (Id; see also Tyrell v Wal-Mart Stores, Inc., 97 NY2d 650, 652 [2001].) A public officer designated by the agency to respond to FOIL requests should be deemed to have been given such "speaking authority" (see Cohn v Mayfair Supermarkets, Inc., 305 AD2d 528, 529 [2d Dept 2003].)

Finally with respects to the FOIL response here (except as to the contents of the Kelly Notice of Claim), if the official statements exception is not available, the date-stamp "Received City of New York" on the Kelly Notice of Claim constitutes a "written admission[ ] of receipt" (see Matter of Goshen Shopping Assocs. v Assessr[s] of Town of Goshen, 260 AD2d 481, 481 [2d Dept 1999]; see also Reed v Gowanda Nursing Home, 4 NY3d 770, 771 [2005]; Matter of Schienberg [Queens Borough Public Library], 263 AD2d 693, 694 n1 [3d Dept 1999]; Matter of Kirchner v E.H., 194 Misc 2d 515, 516-17 [Family Court, Orange County 2003].)

As for the contents of the Kelly Notice of Claim as served on the City, "an out of court statement offered not for the truth of the matter asserted, but merely to show that the defendant was on notice of a danger is not hearsay." (See George v Celotex Corp., 914 F2d 26, 30 [2d Cir 1990]; see also Dawson v Raimon Realty Corp., 303 AD2d 708, 709 [2d Dept 2003]; Stern v Waldbaum, Inc., 234 AD2d 534, 535 [2d Dept 1996].)

Plaintiffs have provided evidence, therefore, that on March 13, 2002 the City was served with a Notice of Claim by Catherine Kelly and John E. Kelly, alleging that, on February 1, 2002, Catherine Kelly "in front of 14 Willow Place . . . was caused to trip and fall upon a defective, hazardous, raised, and uneven sidewalk at said location," and that she "was caused to sustain [*7]serious permanent personal injuries. The City offers no evidence to the contrary.

Which brings us to the merits of Plaintiffs' motion, and their contention that, as a matter of law, the City's receipt of the Kelly Notice of Claim is sufficient to satisfy the prior-written-notice condition precedent of the Pothole Law (see Administrative Code § 7-201 [c] [2]), so as to allow them to pursue their claims against the City arising out of plaintiff Elaine Stone's fall on October 11, 2006. Specifically, the question is whether "there was previous injury to person or property as a result of the existence of the defective, unsafe, dangerous or obstructed condition, and written notice thereof was given to a city agency." (See id.)

The Court notes, first, that the structure of the "previous injury" method of notice under the Pothole Law differs from the two other alternative methods in that the subject of the notice is the "previous injury . . . as a result of the existence of the defective, unsafe, dangerous or obstructed condition," rather than the "defective, unsafe, dangerous or obstructed condition" itself. (See Administrative Code § 7-201 [c] [2].) This Court has found only four published decisions that address the "previous injury" method of notice, three of which involve a prior notice of claim, but does not discern any difference in the tests articulated for sufficiency of the notice, whatever may be the unarticulated effect on the result.

It is also important that all of the published caselaw on prior-written-notice requirements has been generated by motions by the City, or other beneficiary of a prior-written-notice requirement, seeking dismissal of a plaintiff's action, rather than, as here, by a motion by a plaintiff seeking a determination that the notice requirement has been satisfied. Generally, a showing sufficient to create a triable issue in opposition to a motion for summary judgment is not necessarily sufficient to establish prima facie one's own entitlementto judgment as a matter of law. (See American Honda Finance Corp. v Progressive Casualty Ins. Co., 290 AD2d 850, 852 [3d Dept 2002]; Ocean Diagnostic Imaging, Inc. v Utica Mutual Ins. Co., 6 Misc 3d 131 [A], 2005 NY Slip Op 50081 [U], * 2 [App Term, 2d Dept].) One reason is that a court must construe the evidence on a motion for summary judgment in the light most favorable to the party opposing it. (See Jablonski v Rapalje, 14 AD3d 484, 487 [2d Dept 2005].)

In Brooks v City of Binghamton (55 AD2d 482 [3d Dept 1977]), a question of fact was created by a previous notice of claim served approximately five years before the plaintiff's fall, where the previous claim alleged a defect about 15 feet away and the "particular defect claimed" in Brooks "was a part of the condition of the sidewalk in the area" described in the previous claim (see id., at 483.) "[T]he notice, as given, of a general defective condition would probably have brought the particular condition at issue to the attention" of the proper official. (See id., at 483-84.) "The characterization of the sidewalk as defective in an area which reasonably encompasses the particular patent defect alleged . . . is sufficient to meet the requirements of particularization of the condition of the sidewalk for purposes of resisting a motion for summary judgment." (Id., at 484.)

More recently, in Massey v City of Cohoes (35 AD3d 996 [3d Dept 2006]), the court echoed Brooks in holding that "[a] recent written notice that does not provide an exact location, [*8]but which nevertheless reasonably identifies the area of the purported defect, may give rise to a question of fact for the jury as to the sufficiency of the notice" (see id., at 996.) There, a written report of a previous trip and fall in front of the City Hall, less than three months before the subject accident, was found sufficient to raise a factual issue where "the size of the sidewalk in front of the City Hall is relatively small" (see id., at 997), but an even earlier report of a trip and fall, a year and a half before, at a location not specified in the opinion, was found "too remote in location and time to raise a factual issue" (see id., n1.)

The relationship between the defect described in the previous notice and the defect that caused the subject accident was stressed in Jones v Town of Brookhaven (227 AD2d 530 [2d Dept 1996].) "Notice of one isolated pavement defect does not, without more, qualify as notice to a municipality of another defect just because it happens to be nearby." (Id., at 530.) Acknowledging Brooks and the "reasonably encompasses" test, the court nevertheless found the previous notice insufficient. There, the Town had received notice, approximately four months before the plaintiff's fall in front of either 58 or 59 Clearview, of a defective condition in front of 65 Clearview, but "there [was] no indication how far either" 58 or 59 Clearview was from 65 Clearview. (See id.)

The relationship between the two defects, notions of "remoteness" in time and space, and, most importantly, whether the previous notice "would probably have brought the particular condition at issue to the attention" of the proper official (see Brooks v City of Binghamton, 55 AD2d at 483-84) appear to have explicitly or implicitly governed virtually all decisions on the issue. Comparison between and among cases is, of course, easier where factors of space and time are quantified, than where more elusive judgments are made about whether the previous notice would have "brought" the injury-causing condition "to the attention" of the proper official, or "create[d] an awareness of it" (see Holt v County of Tioga, 95 AD2d 934, 935-36 [3d Dept 1983]; see also Michela v County of Nassau, 176 AD2d 707, 708 [2d Dept 1991]; O'Rourke v Town of Smithtown, 129 AD2d 570, 572 [2d Dept 1987].)

In addition to Brooks (55 AD2d 482) and Massey (35 AD3d 996), two other decisions address a previous notice of claim or other report of injury, but neither resolves the present case. Halali v City of New York (253 AD2d 849 [2d Dept 1998]) states conclusorily that "a prior notice of claim filed against the City in an unrelated suit involving a pedestrian's fall on the sidewalk in the subject area did not bring the particular defect of a raised sidewalk to the attention of the City," but gives no details as to time or distance (see id., at 849.) Ortsman v Town of Oyster Bay (178 AD2d 588 [2d Dept 1991]) provides those details as to a notice of claim filed "approximately four years before the accident giving rise to [the] action, which indicated that there wasa defective condition on the subject basketball court, without specifyingits location" (see id., at 589.) The court found the previous notice of claim insufficient; there was "absolutely no indication . . . that the defective condition in [the previous] case, which could have been anywhere on the basketball court, was the same defective condition involved in [the present] case." (See id.)

Ortsman is certainly not helpful to Plaintiffs here. Like the previous notice of claim in [*9]Ortsman, the Kelly Notice of Claim preceded the subject accident by more than four years. Other courts have found that period of time, and much less, to be "too remote." (See Massey v City of Cohoes, 35 AD3d at 997 n1 [one and a half years]; Dalton v City of Saratoga Springs, 12 AD3d 889, 901 [3d Dept 2004] [four years]; McCabe v Town of Riverhead, 2 AD3d 416, 417 [2d Dept 2003] ["more than two years"]; Marotta v Massry , 279 AD2d 877, 878-79 [3d Dept 2001] ["nearly three years"].) On the other hand, in Brooks, the previous notice of claim preceded the accident by five years, and was found sufficient. (See Brooks v City of Binghamton, 55 AD2d at 482.) The courts do not say why a particular time period is found "too remote," or another is not.

Also arguably like the previous notice of claim in Ortsman, the Kelly Notice of Claim does not designate the precise location of the allegedly defective condition by metes and bounds, and only generally describes the condition as a "defective, hazardous, raised, and uneven sidewalk" in front of 14 Willow Place. It might fairly be argued, as the City does, relying on Ortsman, that "there is no evidence that Kelly's accident was caused by the same defective condition that allegedly caused the plaintiff's accident" (see Affirmation in Opposition, ¶ 11.) One answer, of course, is that the area of a basketball court is generally significantly larger than the area of sidewalk in front of most City properties.

More importantly, it is not at all clear whether the reference to "the same defective condition" in Ortsman was intended to reference the nature of the defective condition or its location. If intended to reference the nature of the condition, it seems neither surprising nor inconsistent with other authority. (See Almadotter v City of New York, 15 AD3d 426, 427 [2d Dept 2005]; Patane v City of New York, 284 AD2d 513, 514-15 [2d Dept 2001].) For present purposes, the description of the sidewalk in the Kelly Notice of Claim as "raised" and "uneven" is certainly more general than, but of the same nature as, the detailed description in ¶ 34 of Plaintiffs' Verified Complaint, quoted above.

If, however, the reference in Ortsman to "the same defective condition" was intended to reference the precise location of the condition, then it would seem out-of-sync with many authorities, both before and after, that do not require such precision. "To expect a notice to be as precise as a survey or pinpoint a particular defect when more than one patently exists in the same area is unrealistic and would not further the function of the [prior-written-notice] provision to give appropriate notice to those charged with the duty to maintain the sidewalk." (Brooks v City of Binghamton, 55 AD2d at 484; see also Miele v City of New York, 1998 US Dist LEXIS 8493, * 6 [SDNY].) Even in cases involving Big Apple Maps, "a notice is sufficient if it brought the particular condition at issue to the attention of the authorities." (See Vertsberger v City of New York, 34 AD3d 453, 455 [2d Dept 2006] [quoting Almadotter v City of New York, 15 AD3d at 427]; see also Weinreb v City of New York, 193 AD2d 596, 598 [2d Dept 1993].)

And so, a previous notice will be found insufficient where "the defect causing plaintiff's injury was isolated from" the defective condition described "on property adjacent to the area in which she fell" (see Leary v City of Rochester, 115 AD2d 260, 260 [4th Dept 1985], aff'd 67 NY2d 866 [1986]; see also McCabe v Town of Riverhead, 2 AD3d at 417 ["notice of one [*10]isolated sidewalk defect in front of property adjoining the subject property"].) But a jury issue was presented by a "Big Apple Map indicating the presence of an obstruction protruding from the sidewalk at the address immediately adjacent to the address in front of which the plaintiff fell." (See Vertsberger v City of New York, 34 AD3d at 456.)

Here, the Kelly Notice of Claim locates the defective condition on the sidewalk in front of 14 Willow Place, which is the same property at which plaintiff Elaine Stone fell. A previous notice that "merely referred to the sidewalk in frontof a particular house" was found insufficientwhere it "did not describe any particular defect." (See Camenson v North Hampstead, 298 AD2d 543, 543 [2d Dept 2002].) But here, the Kelly Notice of Claim describes a particular defect, the "raised" and "uneven" condition of the sidewalk, even though it does not locate the condition more precisely.

Attached to Plaintiffs' verified Notice of Claim are a number of photographs that show the alleged defect, as well as a more expansive area within which the defect is located in front of 14 Willow Place. The Notice of Claim describes the building at 14 Willow Place as "three family premises," and locates the "raised sidewalk flag" that caused plaintiff Elaine Stone to fall as "next to" "a large tree situated next to the . . . curb." The photographs depict a portion of a tree-lined residential street that will look familiar to anyone who has spent time in Brownstone Brooklyn. To describe the sidewalk in front of 14 Willow Place, exclusive of the tree and tree bed, as "relatively small" (see Massey v City of Cohoes, 35 AD3d at 997) would hardly be unfair. And the condition depicted, at least at the time of Elaine Stone's fall, could not be characterized as "isolated" as a matter of law.

It is not unimportant that Plaintiffs fail to describe the relationship between the condition at the precise location where Elaine Stone fell, specifically described in their Notice of Claim and Verified Complaint, and the condition at the precise location where Catherine Kelly fell, which is not further described in her Notice of Claim beyond the address. But the City must have learned the details during the course of the Kelly lawsuit, which is not disputed, or from its prior investigation. In considering whether "documentary evidence . . . demonstrate[s] that the responsible city agency knew of the hazard and had an opportunity to remedy it" (see Bruni v City of New York, 2 NY3d at 327), it is fair to assume that the City investigated a condition that allegedly caused "serious and permanent personal injuries" when alerted to it by the Kelly Notice of Claim.

"[A]n opportunity to remedy" the condition cannot be in dispute here. Indeed, the four years between the Kelly Notice of Claim and plaintiff Elaine Stone's fall is the most serious obstacle to a determination in Plaintiffs' favor. With the exception of Brooks v City of Binghamton (55 AD2d 482), which found a triable issue notwithstanding a five-year period between the previous notice of claim and the plaintiff's fall, the authorities cited above have been intolerant of much shorter gaps, even in cases of previous injury like Massey (35 AD3d 996) and Ortsman (178 AD2d 588.) Perhaps the court in Brooks was affected by evidence that the sidewalk had, in fact, been inspected in response to the previous claim, or by (undescribed) evidence that "the plaintiff was caused to fall by an open sidewalk crack which had existed in [*11]such condition since at least" a date earlier than the previous notice of claim. (See Brooks v City of Binghamton, 55 AD2d at 482.)

Plaintiffs provided no evidence of any investigation or inspection by the City in response to the Kelly Notice of Claim, but that should not be decisive. When the purported prior-written-notice comes from a claim for "previous injury," the Court will assume that an inspection at least would be conducted, both in the interest of the City's defense of the claim and its duty to protect pedestrians from unreasonable risk of harm. (The date of the Kelly accident, February 1, 2002, preceded the effectiveness of the New Sidewalk Law.) In the absence of any evidence, however, that would allow even an inference that the condition that caused Elaine Stone to fall would have existed when the Kelly Notice of Claim was served, the four-year gap cannot be ignored. Among other places, that evidence might be found in the facts of the Kelly claim, not elaborated in the rather bare Notice of Claim, or the legal action that followed, or by expert opinion based upon the facts of Plaintiffs' claim.

Were this motion a motion by the City for dismissal, the Court might well conclude that Plaintiffs had raised a triable issue as to prior written notice with the Kelly Notice of Claim, or that further discovery was warranted (see CPLR 3212 [f].) Indeed, the City argues that "whether the City received prior written notice is generally an issue of fact to be resolved by a jury." (See Affirmation in Opposition, ¶ 9.)

But Plaintiffs must establish prima facie that they are entitled to judgment as a matter of law - - that is, that, as a matter of law, the Kelly Notice of Claim satisfies the condition precedent to their action against the City imposed by Administrative Code § 7-201 (c) (2). (See Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) For the reasons articulated above, the Court concludes that they have not done so.

Plaintiffs' motion is, therefore, denied.

September 5, 2007___________________

Jack M. Battaglia

Justice, Supreme Court