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Dick v. Town of Wappinger

June 2, 2009

DAWN DICK, ET AL., APPELLANTS,
v.
TOWN OF WAPPINGER, RESPONDENT.



In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Dolan, J.), dated February 8, 2008, which granted the defendant's motion for summary judgment dismissing the complaint.

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.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, FRED T. SANTUCCI, EDWARD D. CARNI and THOMAS A. DICKERSON, JJ.

(Index No. 592/07)

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff Dawn Dick alleged that on October 16, 2006, she tripped and fell at the entrance to the New York State Police barracks in Wappinger Falls. The entrance to the barracks was situated upon real property owned by the defendant Town of Wappinger and leased to the New York State Police pursuant to a written lease. The Town was identified in the lease as the "LANDLORD." The building was not occupied or utilized by the Town for town government employees and contained no town offices or departments. The Town received annual rental payments from the New York State Police pursuant to the written lease.

The Town moved for summary judgment dismissing the complaint on the ground that it did not receive prior written notice of the defect as required pursuant to Town Law § 65-a(2). The Supreme Court granted the motion on this ground, and we reverse.

When a municipality leases property and acts as a landlord, it functions in a proprietary capacity and is, therefore, subject to the same principles of tort law as a private landlord (see Jackson v City of New York, 55 AD3d 546, 547, citing Miller v State of New York, 62 NY2d 506). Accordingly, the plaintiffs were not required to establish prior written notice to the Town of the alleged defect in the entranceway of the leased premises in order to maintain this action against the Town in its proprietary capacity.

The dissent, in an attempt to bring this location within the language of Town Law § 65-a(2) and Wappinger Town Code § 214-27, characterizes the entrance as a "sidewalk." This nomenclature does not alter the fact that this entrance is situated upon premises leased by the Town to a third party. Thus, the entrance was not related to any activity by the Town in its governmental capacity. Regardless of what name is assigned to this entrance, the Town was acting as a private landlord in a propriety capacity. Thus, Town Law § 65-a(2) and Wappinger Town Code § 214-27 have no application, ab initio, and, contrary to the dissent's analysis, there is simply no need to create a "third exception" to the prior written notice rule.

MASTRO, J.P., SANTUCCI and CARNI, JJ., concur.

RIVERA, J., dissents and votes to affirm the order granting the defendant's motion for summary judgment dismissing the complaint, with the following memorandum, in which Justice DICKERSON concurs.

On October 16, 2006, the plaintiff Dawn Dick (hereinafter the plaintiff) allegedly fell due to a defective sidewalk condition outside of the New York State Police barracks (hereinafter the police barracks) located in Dutchess County. The premises upon which the police barracks was located was leased to the State of New York by the defendant Town of Wappinger.

The plaintiff and her husband, suing derivatively, commenced the instant action. Following joinder of issue, the Town moved for summary judgment dismissing the complaint on the ground that it had no prior written notice of the allegedly defective condition, as required under Town Law ยง 65-a(2). In opposition, the plaintiffs did not dispute the Town's contention that there had been no prior written notice. Instead, the plaintiffs argued, inter alia, that prior written notice was not necessary because the Town was acting in a proprietary capacity as landlord, rather than in a governmental capacity. The Supreme Court granted the ...


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