Kassal and Smith, JJ., dissent in a memorandum by Smith, J., as follows: I agree with the motion court that the notice of claim was impermissibly vague and I would affirm the order.
According to the notice of claim, plaintiff fractured her leg when she tripped due to a "sidewalk and street defect constituting a hazard, trap and/or serious sidewalk/street/pothole defect” located "on Sixth Avenue between 45th Street and 46th Street approximately 15 to 30 feet south of 46th Street on the west side of the street”. Describing the nature of the claim, the notice stated that it was for personal injuries sustained as a result of the City’s negligence in maintaining "the street and sidewalk.” Annexed to the notice of claim were two photographs of the scene of the accident. The first, taken at a downward angle, depicting the sidewalk, the curb, and the street, with the side and tires of a car visible, and the second, angled parallel to the sidewalk, depicting the entire width of the sidewalk and showing persons shopping at a newsstand, a parked car, and even the structures across the street.
The IAS court correctly found that the notice of claim was impermissibly vague in that it did not indicate whether the defect was in the street, the sidewalk, or both, nor identify the site of the accident with sufficient particularity to allow the City to conduct a meaningful investigation. Indeed, the prejudice to the City is apparent from the fact that its investigator was misled into focusing on the wrong sidewalk defect. It is well settled that "where the municipality is misled by the erroneous notice to conduct an investigation at the wrong situs, this circumstance alone results in serious prejudice” (Konsker v City of New York, 172 AD2d 361, 362, lv denied 78 NY2d 858; see also, Garcia-Menocal v City of New York, 157 AD2d 560; Silver v City of New York, 169 AD2d 571, lv dismissed 78 NY2d 942 [1991], rearg denied 78 NY2d 1008). While photographs may be employed to identify the location of an accident (Rivera v City of New York, 169 AD2d 387; Matter of Gerzel v City of New York, 117 AD2d 549), the photographs here are not adequate for that purpose (Konsker v City of New York, supra).
Moreover, Administrative Code of the City of New York § 7-201 (c) (2) requires that written notice of a defect in a sidewalk or street must be pleaded and proved. The virtually illegible map submitted does not constitute compliance with this notice requirement.