NYC "Pothole Law" Complicates Claims Process for Injured Pedestrians and Cyclists

Reporting dangerous conditions before accidents happen is essential, says personal injury attorney Paul Dansker. End Quote

New York, NY (1888PressRelease) June 10, 2011 - In 1980, New York City and other New York State municipalities enacted a law fondly nicknamed the "Pothole Law". This law was designed specifically to protect the city and other municipalities, if not totally insulate them by putting often insurmountable restrictions on the filing of claims by persons who were injured as a result of defective sidewalks, roadways, or other municipal property.

Personal injury attorney Paul Dansker, partner at New York City-based personal injury law firm Dansker & Aspromonte Associates, stresses that, although the "Pothole Law" was designed to inhibit or deter almost all defective street and sidewalk claims, knowledgeable attorneys have found several ways around these onerous restrictions.

The "Pothole Law" states that a person injured by a defective street or sidewalk cannot sue New York City unless the City received prior written notice of the condition at least 15 days before the accident and then failed to make adequate repairs. This is called a "condition precedent" under the law. Injured pedestrians and bicyclists have a right to travel on reasonably safe streets and sidewalks but often have an understandably difficult time proving that the City received prior written notice of a particular defect thereby making it more arduous than ever for them to sue for their injuries.

Dansker & Aspromonte Associates recently tried a case involving a 2005 accident in New York City's Central Park (Supreme Court/New York County index no:103233/06). A 43-year-old woman bicycled across Central Park on a road whose entrance was being barricaded.

"A City employee who was putting up the barricades told her that it was okay to use the road, but failed to tell her that one section of the road was torn up and being staged for repair. The woman could not see the road surface underneath the dark overpass, hit a pit and was thrown off her bike, smashing her face on the edge of the excavation, fracturing her skull, jaw, nose, and septum, breaking several teeth, and severely damaging a tear duct," said Dansker. "She has permanent vertigo and extensive disfiguring scarring around her mouth and nose, despite 19 plastic surgeries."

Dansker & Aspromonte Associates sued the City on behalf of the cyclist, claiming that the employee who waived her in, the project supervisor for the New York City Dept of Highways, allowed the cyclist to ride on that road despite knowing of the dangers; that the City was liable in failing to maintain its roadway in a reasonably safe condition; and that the City caused and created the road condition by patching over the roadway in an ineffective way while the cause of the problem, a broken sewer pipe, was left unattended.

The case could not move forward until Dansker & Aspromonte Associates was able to show that the City had written notice of the road condition. The firm spent five years in litigation trying to obtain the pertinent documentation from the Department of Transportation and Department of Environmental Protection. When the case went to trial, the jury, despite documentation to the contrary, did not find that the City had prior written notice or caused or created the defective condition. It did find, however, that the City's project supervisor was negligent in allowing the cyclist to ride on the road without warning her of the dangerous conditions on the roadway ahead.

"The City is presently appealing the jury's finding," said Dansker. "We have countered and continue to believe that is the accident is a result of construction site negligence. At present, the laws are designed to protect municipalities, making it ever more difficult for those who are injured to prevail in a lawsuit," said Dansker.

"That's why reporting in writing about potential hazards on walkways and roads is so important, not only to put municipalities on notice but also to help create an environment that better protects the rights of those who are injured in the future".

Dansker & Aspromonte Associates is located at 30 Vesey Street, 16th Floor, New York, NY 10007. For more information visit:

http://www.dandalaw.com

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