Broken Sidewalk Concrete, a Fall With My Child, and Two Different Clocks

Attorney Answer

That fall produced two claims — yours and your daughter's — and they do not run on the same clock; the shortest one belongs to whoever was responsible for that stretch of pavement, and it can be ninety days. So the first task is not medical and not legal: it is identifying the address the broken concrete sits in front of, and who owns it.

In New York City the abutting property owner, rather than the City, generally carries the duty to maintain the sidewalk in a reasonably safe condition, under New York City Administrative Code § 7-210. Which properties it reaches is a question for a New York attorney. Elsewhere in New York the allocation differs and often turns on a local law, and a public corporation may also be entitled to advance written notice of the defect.

If a public corporation is responsible — a city, county, town, village, school district or transit authority — two periods run together. General Municipal Law § 50-e(1)(a) requires that "the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises; except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate." General Municipal Law § 50-i(1)(c) then requires that "the action or special proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based; except that wrongful death actions shall be commenced within two years after the happening of the death." A claimant who serves the notice and then relies on the ordinary three-year period loses the case on the calendar.

Your daughter's claim is treated differently from yours, and not identically in every respect. CPLR 208 extends the time to commence an action for a person who was under a disability because of infancy when the claim accrued, on the terms and within the outer limits the section states. It does not by itself dispense with the notice a claim against a public corporation requires — although infancy is one of the circumstances General Municipal Law § 50-e(5) directs a court to weigh on an application for leave to serve a late notice, along with whether the public corporation acquired actual knowledge of the essential facts within ninety days or a reasonable time after, and whether the delay prejudiced the defense. Your own claim is not extended by your daughter's age. A parent's claim arising from a child's injury is its own question and should be raised with counsel rather than assumed either way.

Where the responsible party is a private owner, CPLR 214 gives three years for "an action to recover damages for a personal injury except as provided in sections 214-b, 214-c, 214-i and 215". And CPLR 1411(a) answers any argument that you should have been watching the pavement: "Except as provided in subsection (b) of this section, in any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including contributory negligence or assumption of risk, shall not bar recovery. The amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages."

What you can do

1. Photograph the defect now, from several angles and with something in frame for scale, before anyone repairs it.

2. Write down the address the broken concrete is in front of, and find the owner of that property through the tax roll or deed record.

3. Get examined and have your daughter examined; make sure both records state how the fall happened, including the abrasions.

4. Ask the municipality in writing whether prior complaints about that stretch of sidewalk exist.

5. Take the address, the photographs and both sets of medical records to a New York attorney immediately — if a public corporation is responsible, the ninety-day period may already be running.

⏱ Time limits apply. General Municipal Law § 50-e(1)(a) keys ninety days to the claim arising, General Municipal Law § 50-i(1)(c) keys one year and ninety days to the happening of the event, CPLR 214(5) keys three years to the injury where the defendant is private, and CPLR 208 can extend a child's own period on the terms the section sets. Which combination applies depends on who was responsible for that pavement — a fact this page cannot know. Do not compute any of these dates at home — bring the date of the fall and the address to a New York attorney now.