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Appellate Division Finds Big Apple Maps Did Not Provide City With Legally Adequate Notice Due to Minor Discrepancy Between Plaintiff’s Testimony and Map’s Sidewalk Defect Description

Typically, in New York City, the Big Apple Pothole and Sidewalk Protection Committee (“Big Apple”)’s maps provide legally sufficient notice to the City of dangerous potholes or sidewalk conditions. See https://www.nystla.org/index.cfm?pg=Pothole for more information. Big Apple was established in 1982 by the New York State Trial Lawyers Association to map the City’s 13,000 miles of sidewalks in New York that were capable of causing personal injury. See https://www.nytimes.com/2009/01/04/nyregion/04pothole.html for more information.

These maps were presented annually to the City of New York Department of Transportation (“DOT”) to provide them with the current status of the various sidewalks in the City. For many years, the Big Apple maps forced the City of New York to pay out millions of dollars in claims for personal injuries sustained on City sidewalks. However, in De Zapata v. City of New York, the Appellate Division of the Supreme Court recently decided that the City did not have the proper notice.

Plaintiff was injured on January 24, 2014 when she fell while walking along a public sidewalk in front of a property located at 96 Hemlock Street, Brooklyn, NY. The Plaintiff filed a Notice of Claim against the City of New York on April 16, 2014, asserting a claim against the City for physical injuries from the hazardous snow and ice that was in the depressed and broken section of the sidewalk.

The City moved to dismiss, arguing that it did not have prior written notice of the alleged icy condition and that, therefore, it lacked constructive notice of any icy condition. In opposition, Plaintiff pointed to her §50-h testimony, General Municipal Law §50-h, photographs, and the map served upon the DOT by Big Apple. Specifically, Plaintiff contended that the Big Apple map constituted prior notice and constructive notice of the defect.

The Administrative Code of the City of New York § 7-201(c), specifically limits the City’s responsibility over municipal streets and sidewalks by allowing for liability only if the City had actual notice of the defect at that location. Katz v. City of New York, 87 N.Y.2d 241, 243. Therefore, the Plaintiff must plead the City had prior written notice of the defect in order to maintain an action against the City. Katz, supra, 87 N.Y.2d at 243. Importantly, “Transitory conditions present on a roadway or walkway such as debris, oil, ice, or sand have been found to constitute potentially dangerous conditions for which prior written notice must be given before liability may be imposed upon a municipality.” Farrell v. City of New York, 49 A.D.3d 806, 807.

With that legal background, the Appellate Division held that the City was entitled to summary judgment and a dismissal of all of Plaintiff’s claims against it. The basis for this decision was that the Big Apple map only indicated that the sidewalk abutting the property located at 96 Hemlock Street, Brooklyn, NY had an “[e]xtended section of raised or uneven sidewalk.” However, the Court held that the true defect, as established throughout the case, was the existence of a “hole,” “ditch,” or “icy condition” that Plaintiff claimed to have caused her fall. Therefore, the Court found that the Big Apple map did not provide adequate notice of the sidewalk’s dangerous condition to the City.

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Unmarried, Same-sex Partner Permitted to Bring Negligent Infliction of Emotional Distress Claim for Death of Partner’s Biological Child

I’Asia Moreland and Valerie Benning were a same-sex couple who lived with Moreland’s two biological children, I’Maya and I’Zhir, and Benning’s godson, Armonti.  On January 30, 2009, the five of them were waiting to cross the street to attend a “Disney on Ice” show in Trenton, New Jersey, when a fire truck and a pickup truck collided.  The collision caused the pickup truck to strike two-year-old I’Maya, propelling her body sixty-five feet from where she had been holding hands with Benning.  Tragically, I’Maya died as a result of the accident.  I’Asia Moreland and Valerie Benning filed several claims against the defendants, including bystander negligent infliction of emotional distress (“NIED”).

The main issue in the published Appellate Division decision of Moreland v. Parks, 456 N.J. Super. 71, 191 A.3d 729 (App. Div. 2018), was whether Valerie Benning could establish an “intimate, familial relationship” with I’Maya to satisfy the requirements for bringing an NIED claim.

Moreland and Benning were not married at the time of I’Maya’s death.  However, I’Asia Moreland and Benning had cohabitated for at least 17 months and shared similar responsibilities for the care of the three children, including I’Maya.  I’Maya’s biological brother, I’Zhir, referred to Benning and Moreland has his “two moms.”  Benning testified at her deposition that she had suffered extreme emotional distress over I’Maya’s death, and that she had lost one that she loved like her own that day.

Defendants filed a motion for partial summary judgment, seeking dismissal of Benning’s NIED claim.  The motion judge dismissed Benning and Moreland’s relationship as being mere “lovers.”  Additionally, the judge pointed out that Benning and Moreland were not engaged at the time of I’Maya’s death.  The motion judge went as far as to say that Benning was only part of I’Maya’s life for 17 months and “[t]here’s no evidence that there was any permanent bond or that the relationship that she shared with the decedent was one that was deep, lasting, and genuinely intimate.”

In the New Jersey Supreme Court’s decision in Portee v. Jaffee, the Court created the tort of negligent infliction of emotional distress to allow a narrow class of litigants the right to seek damages for emotional trauma caused by a tortfeasor’s negligence.  Justice Pashman fashioned four elements for this cause of action: “(1) the death or serious physical injury of another caused by defendant’s negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting in severe emotional distress.” Portee, 84 N.J. at 101. In Moreland, the Appellate Division focused on the second element and whether Benning’s relationship with I’Maya rose to the level of an “intimate, familial relationship.”

In a later New Jersey Supreme Court decision, Dunphy v. Gregor, 136 N.J. 99 (1994), the Court extended the limited class of plaintiffs able to seek damages for NIED to a fiancé of the decedent.  In allowing the fiancé to seek damages, even though she was not married to the decedent, the Court crafted a new standard to define the second prong of the Portee test—what exactly constitutes an “intimate, familial relationship.”  The factors used in finding if such a relationship exists are (1) the length of the relationship, (2) the degree of mutual dependence, (3) the degree of shared contributions to a life together, (4) the extent and quality of joint experience, and (5) whether the plaintiff and the decedent were members of the same household, and other factors.

With that legal background, the Appellate Division in Moreland examined whether Valerie Benning had an intimate, familial relationship with I’Maya at the time of her death.  In making its decision, the Appellate Division noted that the definition of what a “family” is has greatly expanded since Portee was decided in 1980 and even since Dunphy was decided in 1994. The Appellate Division held that an “intimate, familial relationship” supporting a claim for NIED could include the relationship between a mother’s cohabitating same-sex partner and the mother’s biological child.  Therefore, the trial court improperly dismissed Benning’s claim because it was possible that a jury could find Benning maintained an intimate, familial relationship with I’Maya at the time of her death.