The city’s fire chief, who filed a lawsuit against Passaic County after his foot sank inside a pothole on Grand Street, received an unfavorable judgment, according to court records.
Superior court judge Lawrence Maron granted the county a summary judgment dismissing the case on September 19th, 2014. Maron’s opinion is largely based on the county having not received sufficient notice of the pothole outside 324 Grand Street.
The county “argues that it did not have sufficient notice, either actual or constructive, to support imposition of liability,” read Maron’s opinion. For an individual to file a claim the county must have prior notice of the dangerous condition at the location, and after being informed, if it did not remediate the condition, a person could file a successful claim under the Tort Claims Act.
The judge writes that Michael Postorino, fire chief, conceded that the county “did not have actual notice of the specific pothole near 324 Grand Street in Paterson until February 17, 2011, one day before” he suffered injuries to his left knee. On that day, an inspector notified the county that it had “several potholes needed to be filled on Grand Street between Spruce Street and Railroad Avenue.”
James P. Nolan and Associates, Woodbridge law firm that represented Postorino, submitted testimony from Jack Nigro, county superintendent of roads and buildings, who stated that “that around the date of the accident, forty employees in his department were responsible for traveling throughout Passaic County, reporting dangerous conditions on the roads and mitigating those dangerous conditions.”
Nigro also added that the county has several buildings in the area. A county employee could have spotted the pothole, described as large and “hidden by water accumulated in a puddle.” The judge wrote, “No evidence has been presented in the motion record to show that the pothole existed for a sufficient period of time.”
Postorino’s lawyer submitted photographic evidence showing the pothole; however, the judge concluded that “does not appear to be more than minimally deep and wide relative to the scale of the roadway.”
Maron also stated that no measurements of the pothole was provided by Postorino. The Law Office of Jeffrey P. Gardner, a Hawthorne based firm, which represented the county, stated Postorino did not provide any engineering report that concludes the pothole posed a danger to pedestrians. The judge wrote no such report was necessary.
Although the judge found the potholes were not there for a “sufficient period of time,” the injuries suffered by Postorino were real, according to professional testimony from doctors submitted by the chief’s lawyer.
A doctor Mark Berman, certified that Postorino “suffered a permanent injury to his left knee.” Another doctor Gregory Charko, an orthopedic surgeon, confirmed Berman’s conclusions. The “permanent loss of cartilage and will suffer a permanent progression towards left knee arthritis,” opined Charko.
The medical reports submitted by Postorino’s lawyer was enough to defeat the summary judgment request made by the county; however, Maron, basing his opinion on lack of sufficient notice received by the county prior to the incident, wrote: The county’s “motion for summary judgment will be granted based upon lack of actual or constructive notice as required by the Tort Claims Act. Therefore, the issue of permanent and substantial injury is moot.”
Postorino did not respond to a message seeking his comments for this story.