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Gorman v. Town of Huntington

April 7, 2009


The opinion of the court was delivered by: Pigott, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Plaintiff Norma Gorman and her husband commenced this personal injury action against defendant Town of Huntington claiming that an uneven piece of the Town's sidewalk in front of a local church caused her to trip and fall. Four months prior to plaintiff's fall, the church's pastor had written to the Town's Department of Engineering Services, the department responsible for the Town's sidewalks, complaining that the sidewalk needed repair.

The Town of Huntington has a prior written notice bylaw section 174-3, similar in effect to State Town Law § 65-a(2) which provides in relevant part that a civil action may not be maintained against the Town for personal injuries "sustained by reason of any . . . sidewalk . . . operated or maintained by the town . . . being defective . . . unless written notice of the specific location and nature of such defective . . . condition by a person with first-hand knowledge was actually given to the Town Clerk or the Town Superintendent of Highways in accordance with § 174-5" (Huntington Town Code § 174-3 [A]). Section 174-5 of the Town Code clearly states that service of the notice on a person other than the Town Clerk or Highway Superintendent "shall invalidate the notice" (Huntington Town Code § 174-5). The Town Clerk is required to "keep an indexed record . . . of all written notices received" (Huntington Town Code § 174-4; see Town Law § 65-a [4]).

Following joinder of issue, the Town sought summary judgment on the ground that it had not received prior written notice of the defect as required by § 174-3 of its ordinance and § 65-a of the Town Law. In support of its motion, the Town submitted affidavits from Town Clerk and Highway Superintendent representatives that no such notice was located in their records.

Concluding that the Town had delegated its statutorily-imposed duty of keeping records pertaining to complaints of sidewalk defects from its Town Clerk and Superintendent of Highways to its Department of Engineering Services, both Supreme Court and the Appellate Division held that the Town had waived strict compliance with its prior written notice law and granted plaintiff summary judgment dismissing the Town's affirmative defenses asserting a lack of proper prior written notice under the statute. The Appellate Division then certified to this Court the question whether its opinion and order was properly made. We hold that it was not.

"Prior written notice provisions, enacted in derogation of common law, are always strictly construed" (Poirier v City of Schenectady, 85 NY2d 310, 313 [1995] citing Doremus v Incorporated Vil. of Lynbrook, 18 NY2d 362, 366 [1966]). Although this Court has recognized the existence of two exceptions that can excuse the lack of prior written notice (see Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]), plaintiffs do not claim that either exception applies.

The purpose of a prior written notice provision is to place a municipality on notice that there is a defective condition on publicly-owned property which, if left unattended, could result in injury. This ensures that a municipality, which is not expected to be cognizant of every crack or defect within its borders, will not be held responsible for injury from such defect unless given an opportunity to repair it. The policy behind this rule is to limit a municipality's duty of care over its streets and sidewalks "by imposing liability only for those defects or hazardous conditions which its officials have been actually notified exist at a specific location" (Poirier, 85 NY2d at 314).

It does not mean, however, that every written complaint to a municipal agency necessarily satisfies the strict requirements of prior written notice, or that any agency responsible for fixing the defect that keeps a record of such complaints has, ipso facto, qualified as a proper recipient of such notice. Simply put, whereas a written notice of defect is a condition precedent to suit, a written request to any municipal agent other than a statutory designee that a defect be repaired is not (see Misek-Falkoff v Village of Pleasantville, 207 AD2d 332, 333 [2d Dept 1994] [claim by plaintiff "that certain other municipal departments may have received notice of the defect" was not sufficient to defeat the municipality's motion for summary judgment where the prior written notice provision expressly stated that written notice was to be filed with village clerk]; Drzewiecki v City of Buffalo, 51 AD2d 870 [4th Dept 1976] [prior written notice to city engineer, as opposed to the city clerk, who was statutorily designated to receive written notices of defect, found not to be sufficient, even where engineer acknowledged the defect and promised that it would be fixed]; see also Farnsworth v Village of Potsdam, 228 AD2d 79 [3d Dept 1997] [report of defect drafted by superintendent of public works and filed with that entity insufficient to comply with prior written notice of defect statute because it was not brought to the attention of the village clerk as required by the village code]; Wisnowski v City of Syracuse, 213 AD2d 1069 [4th Dept 1995]; Conlon v Village of Pleasantville, 146 AD2d 736 [2d Dept 1989]). Nor can a verbal or telephonic communication to a municipal body that is reduced to writing satisfy a prior written notice requirement (see McCarthy v City of White Plains, 54 AD3d 828 [2d Dept 2008]; Akcelik v Town of Islip, 38 AD3d 483 [2d Dept 2007]; see also Dalton v City of Saratoga Springs, 12 AD3d 899 [3d Dept 2004]; Camenson v Town of North Hempstead, 298 AD2d 543 [2d Dept 2002]).

Here, it is undisputed that neither the Town Clerk nor Highway Superintendent received prior written notice of the defective sidewalk. Because the Department of Engineering Services is not a statutory designee, notice to that department is insufficient for purposes of notice under Town Law § 65-a and § 174-3 of the Huntington Town Code. We are unpersuaded that the Department of Engineering Services's practice of recording complaints and repairs warrants a departure from our precedent strictly construing prior-written notice provisions. As the entity charged with repairing Town sidewalks, it is to be expected that the Department would keep a record of needed repairs and complaints but it cannot be inferred from that conduct that the Town was attempting to circumvent its own prior written notice provision.

We likewise reject the Appellate Division's holding that the Town was estopped from relying on its prior written notice provision. Even assuming that estoppel could serve as a third exception to excuse lack of prior written notice, there is no evidence that these plaintiffs relied on the correspondence sent by the pastor to the Department of Engineering Services or on any alleged assurances by that Department that it would repair the condition. Plaintiff testified that she did not learn of the pastor's correspondence until after her accident, demonstrating a lack of reliance.

Accordingly, the order of the Appellate Division should be reversed, with costs, defendant's motion for summary judgment granted, the complaint dismissed and the certified question answered in the negative.

CIPARICK, J. (dissenting):

Because I believe there are unresolved questions of fact as to the record-keeping practices of the Town, I would vote to modify the order of the Appellate Division, by reinstating the fourth and fifth affirmative defenses set forth in defendant's verified answer, and ...

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