By notice of motion dated December 7, 2010, defendant moves pursuant to CPLR 3211(a)(7) and/or CPLR 3212 for an order dismissing plaintiff's complaint. Plaintiff opposes.

On May 19, 2008, plaintiff, a New York City Police Officer, reported for duty at the First Precinct and was assigned to drive a sergeant and other officers in a police van to a detail. (Affirmation of Andrew Lucas, Esq., dated December 7, 2010, [Lucas Aff.], Exh. E). At 12:30 p.m., plaintiff was driving south on Broadway in Manhattan and noticed a vehicle double-parked on the west side of Broadway, north of its intersection with Prince Street. (Id.). He pulled adjacent to the vehicle and signaled to the driver that she must move out of traffic. (Id.). After driving through the intersection, he looked in his rearview mirror, noticed that the vehicle had not moved, and parked the van south of the intersection on the west side of the street. (Id.). He then walked to the vehicle, spoke to its driver and, decided not to ticket her, began walking back through the intersection to the van. (Id.). As he walked on the crosswalk of the intersection, approximately eight feet south of its center, he stepped in a pothole in the pavement approximately nine feet from the west curb and fell, sustaining physical injuries. (Id.).

On June 20, 2008, plaintiff filed with defendant a notice of claim, alleging that it was "negligent in the ownership, operation, maintenance and control" of the subject crosswalk. (Id., Exh. A). The notice of claim mentions neither the General Municipal Law (GML) nor the Administrative Code of the City of New York. (Id.).

By summons and verified complaint dated June 26, 2008, plaintiff asserts claims against defendant for common law negligence and violations of GML § 205-e. (Id., Exh. B). On July 22, 2008, defendant joined issue with service of its answer. (Id., Exh. C).

On December 1, 2009, plaintiff served on defendant a verified bill of particulars, claiming that defendant violated section 19-115 of the Administrative Code. (Id., Exh. D).

At a deposition held on July 2, 2010, Leslie Smalls, a New York City Department of Transportation (DOT) employee, testified that N. Zeigler, another DOT employee, searched DOT records for all materials related to the accident site that were produced between May 16, 2006 and May 16, 2008 and that this search yielded, inter alia, a Big Apple Map dated October 23, 2003. (Id., Exh. G). She testified that the Map was the one most recently served on defendant. (Id.).

The Map's legend contains symbols corresponding to different types of sidewalk and street defects, including an open square, denoting a pothole on a pedestrian crosswalk, and an open circle, denoting a "hole or hazardous depression" in a sidewalk, neither of which appears on the Map at the accident location; rather a solid circle appears on the Map on or near the southern portion of the crosswalk. (Id., Exh. H). The legend contains no solid circle. (Id.).

In response to plaintiff's May 18, 2009 Freedom of Information Law (FOIL) request seeking records relating to crosswalk painting and pothole repairs for the accident site from "back as far as possible," DOT provided plaintiff with two FITS reports, or repair reports, and corresponding gangsheets. (Id., Exh. H.). One report corresponds with defect DM 2007053042, a pothole at the intersection of Broadway and Prince Street, indicating that this defect was "closed" on February 22, 2007. (Affirmation of Roger M. Kunkis, Esq. in Opposition, dated Feb. 10, 2011 [Kunkis Aff. in Opp.], Exh. C). The corresponding gangsheet also provides that a DOT crew repaired the pothole on February 22, 2007, as the defect is marked "XCL," or closed. (Affirmation of Andrew Lucas, Esq. in Reply, dated Mar. 3, 2011 [Lucas Aff. in Reply], Exh. 1). The second report and corresponding gangsheet also show that a pothole at Broadway and Prince Street, defect DM2008117014, was repaired and marked XCL on April 23, 2008. (Id.).

By affidavit dated February 17, 2011, Louis Ancona, Highway Repairer with the Staten Island Street Maintenance Unit of the DOT, states that he reviewed DOT maintenance and repair records for defect DM 2008117014 and found that on April 23, 2008, he supervised a crew that located the defect and repaired it, marking it XCL on the gangsheet for that date. (Id.).

By affidavit dated February 28, 2011, Anthony Napolitano, Supervisor Highway Repairer in the DOT JETS Emergency Response Unit, states that he reviewed DOT maintenance and repair records for defect DM 2007053042 and found that on February 22, 2007, he supervised a crew that located the defect and repaired it, marking it XCL on the gangsheet for that date. (Id.).

Defendant argues that plaintiff's common law negligence claims are barred by the firefighter's rule, as he sustained his injuries while on duty. (Lucas Aff.). It also maintains that [*3]his claims under GML § 205-e are barred, as he failed to plead them in his notice of claim. (Id.). In any event, even if plaintiff's claims are not barred, defendant contends that they must be dismissed because he has shown neither that it received prior written notice of the pothole nor that it caused or created it. (Id.).

In opposition, plaintiff denies that his common law negligence claims are barred by the firefighter's rule, as his official duties did not increase the risk of injury beyond that faced by a normal pedestrian. (Kunkis Aff. in Opp.). He also contends that his claims under GML § 205-e were sufficiently pleaded in his notice of claim, as it contains information sufficient to provide defendant with notice of the nature of both his common law and statutory negligence claims, and he did not allege a new theory of liability in asserting claims under GML § 205-e in his complaint, and that the Big Apple Map and the FITS reports create a material issue of fact as to whether defendant received prior written notice of the pothole. (Id.).

In reply, defendant claims that pertinent case law provides that an officer who is injured while on duty cannot assert common law negligence claims even where the risks he faces are the same as those facing ordinary pedestrians. (Id.). It also denies that the Big Apple Map and the FITS reports provided it with prior written notice of the pothole, as a solid circle does not appear in the Map's legend, and the reports show that the two potholes were repaired before plaintiff's accident occurred. (Id.).

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). If this burden is not met, summary judgment must be denied, regardless of the sufficiency of plaintiff's opposition papers. (Winegrad, 64 NY2d 851, 853).

When the moving party has demonstrated entitlement to summary judgment, the burden of proof shifts to the opposing party which must demonstrate by admissible evidence the existence of a factual issue requiring trial. (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman, 49 NY2d 557, 562). The opposing party must "lay bare" its evidence (Silberstein, Awad & Miklos v Carson, 304 AD2d 817, 818 [1st Dept 2003]); "unsubstantiated allegations or assertions are insufficient." (Zuckerman, 49 NY2d 557, 562).

Moreover, "as a general rule, a party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." (Mennerich v Esposito, 4 AD3d 399, 400 [2d Dept 2004], quoting George Larkin Trucking Co. v Lisbon Tire Mart, Inc., 185 AD2d 614, 615 [4th Dept 1992]). And a defendant moving for summary judgment must negate, prima facie, an essential element of the plaintiff's (Rosabella v Metro. Transp. Auth., 23 AD3d 365, 366 [2d Dept 2005]).

To establish a prima facie case of negligence, a plaintiff must show a duty owed, a breach thereof, and proximate cause. (Kenney v City of New York, 30 AD3d 261, 262 [1st Dept 2006]). When it is alleged that there exists a dangerous or defective condition on the premises, a duty arises from occupancy, ownership, control, or a special use of the premises. (Balsam v Delma [*4]Eng'g Corp., 139 AD2d 292 [1st Dept 1988]).

The firefighter's rule precludes a firefighter or police officer from recovering damages caused by negligence where his "duties increased the risk of injury happening, and did not merely furnish the occasion for the injury." (Zanghi v Niagara Frontier Transp. Commn., 85 NY2d 423, 436 [1995]). "The rule is grounded on the policy that- unlike members of the general public- firefighters [and police officers] are specially trained and compensated to confront hazards and therefore must be precluded from recovering damages for the very situations that create a need for their services." (Galapo v City of New York, 95 NY2d 568, 573 [2000]). "Whether [an officer] was on duty or not is not dispositive; police officers, by the nature of their jobs, face significant risks even when they are not technically at work. What is dispositive is the nature of the risk." (Wadler v City of New York, 14 NY3d 192, 196 [2010]).

Here, plaintiff was injured while discharging an official duty, having tripped on the pothole after speaking with the vehicle's driver and while returning to the van to continue driving the other officers to a detail. However, as he was simply walking, his duty to drive the other officers to a detail did not increase the risk of injury, and this risk is not the sort he was trained to confront as a police officer. Accordingly, the firefighter's rule does not bar plaintiff's common law negligence claims. (See Tighe v City of Yonkers, 284 AD2d 325, 326 [2d Dept 2001] [rule not applied where police officer tripped over steel plate while walking back to patrol car after moving traffic barricade]; Olson v City of New York, 233 AD2d 488, 488-89 [2d Dept 1996] [rule not applied where firefighter getting out of fire truck slipped in a pothole, as "[n]othing in the acts undertaken in the performance of his firefighter duties placed [him] at increased risk for this accident to happen"]; Siciliano v City of New York, 16 Misc 3d 1129[A], 2007 NY Slip Op 51630[U], *3 [Sup Ct, Richmond County 2007] [rule not applied where police officer tripped in pothole while walking to patrol car after being ordered onto patrol, as his injury was not sustained in furtherance of duty that increased risk of it]; cf Carter v City of New York, 272 AD2d 498, 498-99 [2d Dept 2000] [rule applied where police officer tripped on sidewalk defect while issuing parking ticket]; Simons v City of New York, 252 AD2d 451, 451-52 [1st Dept 1998] [rule applied where police officer tripped over depression in roadbed while escorting party from courthouse to subway, as "[b]eing on duty was not the mere occasion" for injury]).

The Big Apple Map, provided by the New York State Trial Lawyer's Association for the purpose of providing City with the written notice required by the Administrative Code, is acceptable for establishing prior written notice so long as the precise defect appears on the map. (D'Onofrio v City of New York, 11 NY3d 581 [2008]). If the exact location of the defect or the nature of the symbol on the map is in dispute, whether the map provided City with prior written notice is an issue for jury determination. (Reyes v City of New York, 63 AD3d 615, 615 [1st Dept [*5]2009]; Almadotter v City of New York, 15 AD3d 426, 427 [2d Dept 2005]).

Here, the symbol for a pothole does not appear at the accident location on the Map, whereas a solid circle does. As a solid circle does not appear on the legend and thus has no significance, it does not represent the pothole at issue and does not provide defendant with prior written notice of this defect. (See D'Onofrio, 11 NY3d at 585 [where plaintiff tripped over raised portion of sidewalk, no prior written notice where symbol on Map at accident location not symbol for such defect and not in Map's legend]; compare Almadotter, 15 AD3d at 427 ["whether the cracked, uneven, irregular, unlevel, raised, dangerous and/or hazardous condition' of the sidewalk . . . is the same condition as the extended section of obstructions protruding from [the] sidewalk' noticed on the Big Apple map is a question of fact which should be resolved by a jury"]; Johnson v City of New York, 280 AD2d 271, 271-72 [1st Dept 2001] [where Big Apple Map showed three symbols at accident in close proximity to one another, whether it provided City with prior written knowledge properly left to jury]).

Repair orders and reports, such as FITS reports, do not constitute prior written notice. (Marshall v City of New York, 52 AD3d 586, 587 [2d Dept 2008]; Khemraj v City of New York, 37 AD3d 419, 420 [2d Dept 2007]; Lopez v Gonzalez, 44 AD3d 1012, 1012-13 [2d Dept 2007]).

Pursuant to GML § 205-e(1), "in addition to any other right of action or recovery under any other provision of law," an employee of any police department may recover damages arising from the negligence of any person if such injury occurs "while in the discharge or performance at any time or place of any duty imposed." Although a plaintiff asserting a claim under this section [*6]must identify a statute or ordinance with which the defendant allegedly failed to comply (Aversa v New York City Hous. Auth., 233 AD2d 217 [1st Dept 1996]), he need not do so in his notice of claim (Foley v City of New York, 43 AD3d 702, 704 [1st Dept 2007]; Zahra v New York City Hous. Auth., 39 AD3d 351, 351 [1st Dept 2007]; Kondek v City of New York, 271 AD2d 493, 493 [2d Dept 2000]; Reilly v City of New York, 271 AD2d 425, 426 [2d Dept 2000]; Flynn v City of New York, 258 AD2d 129, 133 [1st Dept 1999]; Simons, 252 AD2d at 453). Rather, the notice of claim need only provide enough information to enable the defendant municipality to investigate the underlying facts and merits of the claim. (Kondek, 271 AD2d at 493).

Here, plaintiff's notice of claim provides the date, time, and place of his accident and specifies that his claims are for personal injury, medical expenses, and lost earnings, and defendant's negligence is identified in it as the cause of his injuries. Although neither GML§ 205-e nor the Administrative Code are mentioned, his notice of claim is sufficient to permit defendant to investigate his claims. (See Kondek, 271 AD2d 493 [notice of claim sufficient despite failure to plead GML § 205-e claims, as it included date, time, and location of accident, thus enabling defendant municipality to investigate]; Simons, 252 AD2d at 453 [notice of claim sufficient despite failure to plead GML § 205-e claims, as it "described in sufficient detail the time, place, and manner of the occurrence and plaintiff's damages to advise the City of the basis for the claim so as to have an opportunity to investigate"]; see also Foley, 43 AD3d at 704 ["belated identification of several sections of the Administrative Code entails no new factual allegations, raises no new theories of liability, and has caused no prejudice to defendant'"]; Reilly, 271 AD2d at 426 [granting leave to amend complaint to assert claims under GML § 205-e even though such claims not pleaded in notice of claim]; Flynn, 258 AD2d at 133 [where plaintiff failed to plead GML § 205-e claim in notice of claim and asserted such claim in verified bill of particulars five years later, claim not barred and held to relate back to common law negligence claim originally pleaded]).

The prior written notice requirement of section 7-201(c)(2) applies to claims under GML § 205-e. (Politis v Town of Islip, 82 AD3d 1191 [2d Dept 2011]; Montalvo v City of New York, 46 AD3d 772 [2d Dept 2007], lv denied 10 NY3d 707 [2008]). As plaintiff has failed to demonstrate that defendant had prior written notice (see supra IV.A.2), his claims under GML§ 205-e are dismissed.

Accordingly, it is hereby

ORDERED, that defendant City of New York's motion for summary judgment is granted and the complaint is hereby dismissed.

ENTER:

_______________________________

Barbara Jaffe, JSC

DATED:July 1, 2011 [*7]

New York, New York