Plaintiff, the administratrix of the Estate of Daphne Daniels (Daniels) brings this action against the City of New York (City), the Metropolitan Transit Authority and the New York City Transit Authority (collectively NYCTA), Slattery Skanska., Inc., Gottlieb Skansaka Inc., Slattery Skanska, Inc., (collectively Skanska)Family Aides, Inc. (Family Aides) and its employee Evelyn Sitaram (Sitaram), third-party defendant Verizon New York, Inc. and Consolidated Edison Company of New York, Inc., for damages allegedly sustained by Daniels when she fell on gravel [*2]and/or debris on a sidewalk in close proximity to a NYCTA construction site where the contractor had performed work at the behest of the NYCTA.

On March 5, 2004, Daniels, a sixty three year old blind woman, was walking with her aide, Sitaram, an employee of Family Aide when she fell on some gravel on the sidewalk at the southwest corner of Flatbush Ave Extension and DeKalb Ave.

The deposition testimony of Daniels and Sitaram established that Daniels was caused to fall when she stepped on gravel. Ms. Sitaram further testified that the location of the accident was in close proximity to a construction site.

A permit had been issued by the City to Skanska to do work near the accident site. The deposition testimony of Richard DeCurtis, a project administrator for the NYCTA and John Weaver, superintendent for Skanska established that Skanska was the contractor for the NYCTA to do work near the accident site.

2

The City of New York now moves for summary judgment dismissing the complaint for failure to comply with §7-201 (c) of the N.Y.C. Administrative Code (Prior Written Notice Law) which provides as follows:

No civil action shall be maintained against the city for damage to

property or injury to person or death sustained in consequence of

any street, highway, bridge, wharf, culvert, sidewalk or crosswalk,

or any part or portion of any of the foregoing including any encumbrances

thereon or attachments thereto, being out of repair, unsafe, dangerous

or obstructed, unless it appears that written notice of the defective,

unsafe, dangerous or obstructed condition, was actually given to the

commissioner of transportation or any person or department authorized

by the commissioner to receive such notice, or where therewas previous

injury to a 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, of there was written acknowledgment from the

city of the defective, unsafe, dangerous or obstructed condition, and there

was a failure or neglect within fifteen days after the receiptof such notice

to repair or remove the defect, danger or obstruction complained of, or the place

otherwise made reasonably safe.

The City relies on the record searches performed by the Department of Transportation (DOT) as well as the testimony of an employee of DOT which the City argues establishes that the City did not have prior written notice of any defect or condition in the sidewalk at the accident site.

In response, while recognizing that the issuance of a permit does not provide the City with actual notice of a defective condition, plaintiff argues that once it is shown that the City issued work permits at a location that the City has the burden of establishing that it did not do inspections of the work site. In support of their argument, plaintiff relies on Blake v City of Albany, 48 NY2d 875 [*3][1979].

Blake is distinguishable for a number of reasons. First, the case was a common law negligence case and not a prior written notice law case. In addition, there was substantial circumstantial evidence that the City of Albany had constructive if not actual notice of the defect which was a sunken catch basin.

3

Plaintiff also relies on Kilmek v Town of Ghent, 114 AD2d 614 [2d Dept 1985], and Giganti v Town of Hempstead, 186 AD2d 627 [2d Dept 1992], which both held that compliance with prior written notice statutes are excused when the municipality has notice of the dangerous or defective condition because "it either has inspected or was performing work upon the subject area shortly before the accident". Here there is no evidence that any inspection was performed by the City and no evidence that the City was performing work at the accident site. To the contrary, there is evidence that co- defendant NYCTA was performing work at the site.

As acknowledged by the plaintiff, it is well settled that issuance of a permit by the City does not constitute prior written notice of the condition and the City cannot be held liable for merely issuing a permit. ( Meltzer v City of New York, 156 AD2d 124 [ 1st Dept1989] , Acevedo v City of New York Housing Authority, 128 AD2d 488 [2d Dept 1987], De Witt Properties v City of New York, 44 NY2d 417 [1978]).

The Court rejects plaintiff's invitation to create new law which would require the City in any case where it issued a permit, to prove a negative i.e. that it did not do an inspection. To do so would place an onerous burden on the City and would eviscerate the legislative intent behind the Prior Written Notice Law. Accordingly, there is nothing in the record before the Court to establish that prior written notice was given to the City and the papers in opposition fail to raise triable issues of fact on the notice issue. As such, the City's motion for summary judgment is granted. (Camacho v. City of New York, 218 AD2d 725 [2d Dept 1995] ).

The NYCTA cross moves for summary judgment asserting that plaintiff is "unable to identify what caused her to fall, due to her inability to see" and further argues that plaintiff "cannot simply assume the source of the claimed condition."

4

The Court disagrees. The deposition testimony of Daniels and the defendant Sitaram who were at the accident scene when combined with the testimony of the project administrator for defendant NYCTA and the superintendent of defendant Skanska raise triable issues of fact as to the liability of the NYCTA. The testimony raises triable issues of fact that Daniels fell on gravel negligently left or spread on the sidewalk as a result of the negligence of the defendants. Accordingly, the motion for summary judgment of the NYCTA is denied.

The Clerk of the Court is directed to dismiss the complaint and all cross claims against the defendant the City of New York with prejudice.

The foregoing constitutes the decision and order of the Court. [*4]

_______________________

Robert J. Miller

J.S.C.

May 2, 2008