The motion of defendant The City of New York (hereinafter, the City") to dismiss the complaint pursuant to CPLR 3211(a)(7) and for summary judgment pursuant to CPLR 3212 is granted.

In this personal injury action, plaintiff Elizabeth Dwyer alleges that on February 12, 2007, at approximately 9:30 p.m., upon exiting her vehicle in front of 12 Bishop Street, Staten Island, New York, "she was caused to fall in a hole which was dangerously, hazardously, carelessly and negligently left in place of the existing curb" (Plaintiff's Notice of Claim dated April 16, 2007). At her deposition, plaintiff testified that her car was parked adjacent to the grassy area between the sidewalk and the street. She stated that she "took [] two steps coming out of the car, closed the door then took one step and...fell in the hole" which was "grass covered" and measured approximately twelve inches in diameter and five or six inches in depth. According to plaintiff, she observed the hole for the first time when she fell since "[i]t didn't look like anything other than flat grass." It is undisputed that there was no curb abutting the grassy area where plaintiff fell.

In moving to dismiss the complaint and for summary judgment, defendant City maintains that plaintiff has failed to comply with the prior written notice requirement of §7-201 of the New York City Administrative Code, more commonly known as the "pothole law". In support, the City relies upon the deposition testimony of Leslie Smalls ^[FN1], a record searcher employed by its Department of Transportation (hereinafter, "DOT"), who interpreted the results of a DOT search she conducted for permits, maintenance and repair records, contracts, sidewalk violations, the "Big Apple" map and legend, and any additional complaints relative to the area of plaintiff's fall for the two year period preceding the date of plaintiff's accident. According to the witness, the search disclosed five permits, one Corrective Action Report and five applications, none of which pertained to the specific location identified by plaintiff, i.e., in front of 12 Bishop Street. As for the "Big Apple" map, the City maintains that the maps reflect only defects in sidewalks, curbs and pedestrian crosswalks. Accordingly, it is argued that the particular defect at issue here, i.e., a [*2]"hole" in the grassy area between the street and the sidewalk, would not be depicted thereon. In addition, the City points out that plaintiff admitted at her deposition that she did not fall as a result of a curb defect since "there [was] no curb" in front of 12 Bishop Street.

In opposition to the City's motion, codefendant Keyspan Energy Delivery New York (hereinafter, "Keyspan") maintains that the City's motion is premature since discovery is still in progress. Relative to the foregoing, it is alleged that the City has failed to respond to certain disclosure requests concerning several "FITS" reports obtained in response to a FOIL request. Keyspan claims that these reports demonstrate "the possibility of City-related work at or near the accident location." More particularly, the reports upon which Keyspan relies are said to memorialize citizen complaints to DOT (1) on November 5, 2004 concerning a "hole on [the] sidewalk where [a] tree was removed" at 85 Bishop Street, and (2) on November 10, 2006 concerning a "missing curb" at 50 Bishop Street.^[FN2]

In view of the above, it is the opinion of this Court that the City has established its prima facie entitlement to judgment as a matter of law by demonstrating that it did not have prior written notice of the alleged defect as required by §7-201 of the New York City Administrative Code (see Marshall v City of New York, 52 AD3d 586, 586). In opposition, plaintiff and Keyspan have failed to raise a triable issue of fact in order to defeat summary judgment.

In this regard, it is well established that citizen complaints, otherwise known as FITS reports, do not satisfy the prior written notice requirement of the Administrative Code (id. at 587; Lopez v Gonzalez, 44 AD3d 1012, 1012-1013; Akcelik v Town of Islip, 38 AD3d 483, 484; Khemraj v City of New York, 37 AD3d 419, 420 ) and, here, the FITS reports refer to locations other than 12 Bishop Street. As for the markings on the Big Apple map, the "legend" indicates that a vertical line represents an "extended section of raised or uneven sidewalk", and an "X" represents a "broken, misaligned or uneven curb". Clearly, neither is the same defect that allegedly caused plaintiff's injury (see D'Onofrio v City of New York, 11 NY3d 581; Ortiz v City of New York, 67 AD3d 21, 29).

Moreover, any contention that (1) the subject hole was situated in the "curb area" or (2) the absence of a curb at the site of plaintiff's accident contributed to her injury is belied by her deposition testimony and photographs marked into evidence that clearly depict the "hole" in the grassy area and its location relative to the street and the "non-existent curb".

Finally, no exception to the prior written notice requirement has been alleged.

Accordingly, it is

ORDERED, that the motion by defendant the City of New York for summary judgment and dismissal of the complaint and any cross claims against it is granted; and it is further

ORDERED, that such causes of action are hereby severed and dismissed; and it is further

ORDERED, that the Clerk enter judgment and mark his records to reflect this dismissal; and it is further

ORDERED, that the caption be amended to delete the name of defendant The City of New York. [*3]

E N T E R,

Dated: April 12, 2010__/S/_____________________

Hon. Thomas P. Aliotta

J.S.C.