Bisulco v. City of New York

Order, Supreme Court, New York County (Alfred Toker, J.), entered August 8, 1991, granting reargument and adhering to an earlier order of the same court and Justice, entered April 4, 1991, denying the motion of defendant City of New York ("City”) for summary judgment dismissing the complaint, affirmed, without costs. Appeal from the earlier order dismissed as academic. On May 24, 1986, nine year old Jason Bisulco fell on a Manhattan sidewalk and sustained a fracture of his right leg. Plaintiffs alleged, inter alia, that Jason fell against a 5-inch metal post which was protruding from the sidewalk and which had been left when the City removed the sign. The City moved to dismiss for failure to state a cause of action pursuant to CPLR 3211 (a) (7) or, in the alternative, for summary judgment dismissing the action pursuant to CPLR 3212, solely based on plaintiffs’ failure to allege or prove that defendant had had adequate notice of the defective condition [85] as required by Administrative Code of the City of New York § 7-201 (c) (2). The IAS Court denied the motion, finding that a parking sign constitutes a special use of the sidewalk which excepted it from the mandate of the cited statute. We find that the IAS Court erred in finding that the installation of a parking sign on a city street is a special use bringing it out of the mandate of the statute. Nevertheless, it is well established that Administrative Code § 7-201 (c) (2), commonly known as the "Pothole Law,” has no applicability to instances where it is claimed that the City was affirmatively negligent in causing or creating the defective condition, and a plaintiff is under no onus to either plead or prove notice (see, Kelly v City of New York, 172 AD2d 350, 352; Rehfuss v City of Albany, 118 AD2d 987). In this case, in addition to claiming that the City had failed to maintain the sidewalk, plaintiffs’ complaint stated a cause of action against the City for causing and creating the hazard by improperly removing the sign. Since failure to provide notice was the only basis for the City’s motion to dismiss and/ or for summary judgment, that motion was clearly inapplicable to this cause of action. Moreover, at this point in the action, it is particularly inappropriate for this Court to sua sponte search the record and grant summary judgment on this cause of action since many of the underlying facts are within the exclusive knowledge and control of the defendant who erected and maintained the sign. At the least, plaintiffs should be afforded an opportunity by way of discovery to elicit the information necessary to establish their claim that the City removed the sign, including any information contained in the City’s own records (see, Rehfuss v City of Albany, supra, 118 AD2d 987). The statements in the affidavits which the City has supplied to date establish only that, in the two years prior to the accident, the City received no complaints regarding the stump and made no repairs at that location and fail to establish that it was not the City which removed the sign, which is, for this cause of action, the salient factor. Concur— Sullivan, J. P., Ellerin and Rubin, JJ.