Pen v. City of New York

Opinion

Pen v City of New York

2026 NY Slip Op 05033

August 19, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Oleg Pen, appellant,

v

City of New York, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 19, 2026

2025-00980, (Index No. 519222/16)

Betsy Barros, J.P.

Lillian Wan

James P. McCormack

Phillip Hom, JJ.

William Pager, Brooklyn, NY, for appellant.

Steven Banks, Corporation Counsel, New York, NY (Jeremy W. Shweder and Bo Malin-Mayor of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Patria Frias-Colón, J.), dated December 10, 2024. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

On March 11, 2016, the plaintiff allegedly was injured when he tripped and fell on a defective condition while walking on the Riegelmann Boardwalk (hereinafter the boardwalk) between Brighton 1st Place and Brighton 2nd Street in Brooklyn. In a notice of claim served upon the defendant, City of New York, the plaintiff more specifically identified the location of the accident as being on the boardwalk, "(at its east end), opposite the Brighton Playground (which is located between Brighton 1st Place and Brighton 2nd Street)" and "on or about the center of the boardwalk, next to boards running parallel along the boardwalk, (between the beach side of the boardwalk and the Brighton Playground's side)." Thereafter, the plaintiff commenced this action against the City to recover damages for personal injuries. The City moved for summary judgment dismissing the complaint, contending that it did not receive prior written notice of the defective condition. In an order dated December 10, 2024, the Supreme Court granted the motion. The plaintiff appeals.

"Prior written notice of a defective condition is a condition precedent to maintaining an action against a municipality where, as here, there is a local law requiring such notice" (Callaghan v County of Nassau, 236 AD3d 725, 726 [internal quotation marks omitted]; see Donnellan v City of New York, 112 AD3d 780). Administrative Code of the City of New York § 7-201(c)(2) "limits the City's duty of care over municipal streets and sidewalks by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specified location" (Fisch v City of New York, 194 AD3d 786, 787 [internal quotation marks omitted]). "'[T]he term "sidewalk" shall include a boardwalk'" (Donnellan v City of New York, 112 AD3d at 781, quoting Administrative Code § 7-201[c][1][b]).

Here, in support of its motion, the City submitted, inter alia, affirmations of a record [*2]searcher employed by the City's Department of Parks and Recreation and a transcript of the deposition testimony of a supervisor employed by the City's Department of Parks and Recreation. This evidence failed to establish, prima facie, that the City did not receive prior written notice of the subject defect that allegedly caused the plaintiff's fall (see Harrison v City of New York, 184 AD3d 742, 744; cf. Schaum v City of New York, 216 AD3d 691, 692) or to the extent that prior written notice may have existed, that any repairs undertaken to correct defects in the area of the plaintiff's fall were completed prior to the plaintiff's accident (see Pisiak v City of New York, 186 AD3d 512, 513). Since the City failed to meet its prima facie burden, the Supreme Court should have denied the City's motion for summary judgment dismissing the complaint, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

BARROS, J.P., WAN, MCCORMACK and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court