Street Justice: A Civil Court Arbitrator Explains a Tricky Pothole Decision
How many potholes do city officials know about?
I was recently the court arbitrator in a pothole case against New York City. It was my first pothole case as an arbitrator, and it piqued my interest at once. The claimant, who I will here call "Playman" and who described himself as a "well-to-do retiree," was driving back from his house in Southampton on a clear Monday morning in April of this year when his Ferrari struck a "huge" pothole, damaging his front tire and metal wheel cover as well as the rear wheel and certain other equipment under his car.
It happened on the East River Drive in Manhattan, near his city apartment.
He said that he did not see the pothole before he hit it and that he had no warning of the danger. Playman proved that he paid his Long Island repair shop for two tires plus additional parts and labor, for a total of $1,908.
New York City was represented by a young lawyer. She was alone. I asked her at the beginning of the hearing if she had a witness for NYC other than herself, and she said that she did not. She proceeded to argue, as the attorney for the City of New York, that NYC's "Pothole Law" provides that the city is only liable for damages by potholes if it knows of them because workers had found them or because they had been reported to city officials.
I asked her if the city had made a search of its records, and she said that it had not and that the city was not obligated to do so under the law. I asked if she was authorized to negotiate a settlement of the claim, and she said that she was not. I then considered whether the claimant, Playman, was entitled to an award for damages to his car caused by a city pothole.
I held in favor of Playman and recommended an award to the court in his favor against NYC for $1,908.
New York City's Pothole Law (NYC Administrative Code section 7-201(c)(2)) is clear on the requirement of notice of the pothole and the time period that the city had to fix it. It is less clear on the content of the notice, and it is silent or vague on the form of the writing that will satisfy the required notice, or how to find it. The statute says that "no civil action shall be maintained...unless it appears...that written notice of the defective condition...was actually given" to any of several agencies or city officials (DOT, DEP, "a city agency" or authorized person) "or there was a written acknowledgement from the city." It includes claims for previous injury, such as notices of claims filed against the city. I assume that the city maintains a log of all such notices of claim.
I first considered that if it is the duty of the claimant to prove that there are written complaints that will satisfy the law's notice requirement, he should be given a reasonable opportunity to do so.
It seemed to me that the Pothole Law had to be understood by the public in order to be complied with, and it should not be an unfair trap for the unwary. Forcing the claimant to track down the necessary documents in order to pursue the case creates an obstacle that might make him forfeit a valid claim, in my opinion.
I first considered the possibility of recommending as arbitrator to the Small Claims judge that the Playman case be placed on the Small Claims Court trial calendar on a future date, to give the claimant an opportunity to prove that NYC was on notice regarding the pothole and failed to repair it as required. However, and before I could do so, Scott M. Stringer held a televised news conference in the city, where he discussed pothole problems. Mr. Stringer is NYC's comptroller, and as such he is an elected official of the city.
Mr. Stringer released an analysis revealing that $138 million was paid to drivers and pedestrians for pothole claims over the last six years; that vehicle hotspots included the Grand Central Parkway (433 claims); the Belt Parkway, with the highest number of claims involving vehicles (706); and the Brooklyn Queens Expressway (422 claims). Stringer called his initiative "ClaimStat Alert," with its goal being to reduce the amount paid out by New York City on pothole claims.
I then decided, based on the public revelations made by Stringer, the city's elected comptroller, that New York should be held to have had notice of the pothole. I recommended to the Small Claims Court judge that the claimant be awarded the sum of $1,908 against the City of New York.
In my opinion, justice was served.
Theodore Nussbaum is a former entertainment lawyer who has been an arbiter in New York City Civil Court for more than 25 years. He is also a member of the Mediation Panels of the Supreme Court of the State of New York for Manhattan, Queens, and Kings counties, as well as for the U.S. District Court for the Southern District of New York. He blogs about his Civil Court experiences at ArbitrationMan.com.