This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
New York City generally cannot be held liable for a defect covered by its prior written notice law unless it had written notice beforehand, but to win dismissal before trial the City must first show that it had none. Here, the First Department affirmed the dismissal of a claim by a man who alleged he tripped on a two- or three-inch bump in an asphalt path in Van Cortlandt Park, because the City’s records search showed no written complaints and his evidence did not raise a question of fact.
The case
- Court
- Appellate Division, First Department
- Decided
- October 22, 2026
- Case
- Maldonado v City of New York
- Citation
- 2026 NY Slip Op 06201
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff alleged that he was injured when he tripped and fell on a two- or three-inch-high bump in an asphalt pathway inside Van Cortlandt Park in the Bronx. He sued the City of New York, which moved for summary judgment dismissing the complaint. The Supreme Court, Bronx County, granted the motion, and the plaintiff appealed.
The holding
The First Department unanimously affirmed. “The City showed that it lacked prior written notice of the condition by submitting an affirmation of its assistant records officer for the relevant New York City Department of Parks and Recreation (Parks) records showing that the City received no written complaints about the condition” (2026 NY Slip Op 06201, *1, citing Administrative Code § 7-201[c][2]). The plaintiff argued that City employees created a dangerous condition by improperly cold-patching the path, but “[e]ven if the City cold-patched the pathway prior to plaintiff’s fall, that fact by itself does not provide a basis for an inference that the repair immediately resulted in a hazardous condition” (id.). And 13 City photographs of other defects in the general vicinity “do not constitute a written acknowledgement of the specific defect that allegedly caused his injury” (id. at *2). “None of the City’s photographs and inspection reports documented or referred to a bump or a hole in the subject pathway” (id.).
What changed
Nothing new: this applies settled law, including the court’s earlier decisions in Harvey v Henry 85 LLC (171 AD3d 531) and Brenes v City of New York (246 AD3d 458).
What it means
- New York City, like many municipalities, has a prior written notice law. Under it, a claim for a covered defect generally fails unless the City had written notice of the defect beforehand, with limited exceptions, such as when the City itself created the defect through an affirmative act of negligence. Here the court applied it to an asphalt path inside a City park.
- A City repair is not enough by itself. To rely on the exception for a defect the City created, the injured person needs evidence that the repair immediately made the spot dangerous.
- City photographs of other defects nearby did not count as a written acknowledgement of this one. The record must concern the specific defect.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
This decision is the other side of our entry on Young v City of New York, decided one day earlier, and readers may wonder why the City’s motion failed there and succeeded here. One difference is the court: Young, a fall on the Riegelmann Boardwalk in Brooklyn, was decided by the Second Department, and this Bronx case by the First Department. But we do not read the two decisions as a disagreement between the Departments. Both apply the same City law, and both start from the same rule: to have a claim dismissed before trial, the City must first show that it had no prior written notice. We cannot say for certain from the decisions alone, but we believe the real difference was the proof of the search. In Young, the Parks Department’s affidavit “did not unequivocally assert that the search failed to reveal any prior written notice of the alleged defect,” and the searched records apparently were not attached, so the City’s motion failed “regardless of the sufficiency of the plaintiff’s opposition papers.” Here, the court found that the City’s records showed no written complaints about this condition. That shifted the burden to the plaintiff. His evidence of a repair (a possible cold patch and a supervisor’s testimony) did not show that a repair immediately created the defect, and the 13 City photographs never referred to this bump. Same rule, different proof. Two lessons follow. 1. After a fall on public property, if you can do so safely, photograph and measure the exact spot, and get legal advice promptly, because the Notice of Claim deadline is short (see our post on falls on public property). 2. For lawyers, ask early for the City’s complaints, repair records, inspection reports, and photographs for the exact location, and look for one that refers to the specific defect. A record of the neighborhood is not a record of the defect.
Topics
Court: First Department. Year: 2026. Statutes: Administrative Code of City of NY § 7-201(c)(2). Result: affirmed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided October 22, 2026. Posted October 26, 2026.
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