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Margaret Groninger v. Village of Mamaroneck

June 2, 2011


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

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

Plaintiff commenced this personal injury action against the Village of Mamaroneck after she slipped and fell on ice in a parking lot owned and maintained by the Village. The Village moved for summary judgment dismissing the complaint, asserting that it had neither received prior written notice of the defect (see CPLR 9804; Village Law § 6-628) nor created the icy condition. Plaintiff opposed the motion, asserting, as relevant to this appeal, that the written notice requirement does not apply to publicly-owned parking lots.

Supreme Court granted the Village's motion and the Appellate Division affirmed, rejecting plaintiff's contention, and holding that the Village met its burden of demonstrating that it had not received such notice (67 AD3d 733 [2d Dept 2009]). The court further held that plaintiff failed to meet her burden of showing that either exception to the written notice requirement applied (id. at 734) and certified to this Court the question of whether its decision and order was properly made.

Village Law § 6-628, which is nearly identical to CPLR 9804, provides, in pertinent part, that:

"No civil action shall be maintained against the village . . . for damages or injuries to person or property sustained solely in consequence of the existence of snow or ice upon any sidewalk, crosswalk, street, highway, bridge or culvert unless written notice of the defective, unsafe, dangerous or obstructed condition or of the existence of the snow or ice, relating to the particular place, was actually given to the village clerk and there was a failure or neglect within a reasonable time after the receipt of such notice to repair or remove the defect, danger or obstruction complained of, or to cause the snow or ice to be removed, or the place otherwise made reasonably safe."

Such notice is obviated where the plaintiff demonstrates that the municipality "created the defect or hazard through an affirmative act of negligence" or that a "special use" conferred a benefit on the municipality (Amabile v City of Buffalo, 93 NY2d 471, 474 [1999]).

Plaintiff, relying on our holding in Walker v Town of Hempstead (84 NY2d 360 [1994]), argues that because a publicly-owned parking lot does not fall within any of the six specifically enumerated locations in the written notice statutes, it is not subject to the written notice requirement. We reject this argument and affirm the Appellate Division's order.

In Walker, the plaintiff brought a negligence action against the town for injuries he sustained on a municipal paddleball court in the town's "beach area." The town code required prior written notice of defects existing in, among other things, "parking field[s]," "beach area[s]" and "playground equipment." This Court concluded that the town's written notice requirement ran afoul of General Municipal Law § 50-e (4)'s directive that "[n]o other or further notice . . . shall be required" concerning defects on municipal property that fall outside the statutorily delineated locations (i.e., sidewalk, crosswalk, street, highway, bridge or culvert). In reaching that conclusion, we stated that "we can only construe the Legislature's enumeration of six, specific locations in the exception . . . as evincing an intent to exclude any others not mentioned" and therefore constituting "a prohibition of any notice of defect enactment pertaining to locations beyond the six specified," meaning that the town could not rely on the lack of prior written notice as a defense to a paddleball court accident (Walker, 84 NY2d at 367-368 [citation omitted]). It is this last point of law upon which plaintiff relies in asserting that, because a publicly-owned parking lot is not listed as one of the locations in which defects require prior written notice, such notice was not a condition precedent to suit.

For nearly thirty years, the courts of this state have consistently found that a publicly-owned parking lot falls within the definition of a "highway" and therefore prior notice of defect is required (see e.g. Peters v City of White Plains, 58 AD3d 824, 825 [2d Dept 2009]; Walker v Incorporated Vil. of Freeport, 52 AD3d 697, 697 [2d Dept 2008]; Healy v City of Tonawanda, 234 AD2d 982, 982 [4th Dept 1996]; Lauria v City of New Rochelle, 225 AD2d 1013, 1013-1014 [3d Dept 1996]; Stratton v City of Beacon, 91 AD2d 1018, 1019 [2d Dept 1983]).

Plaintiff asserts that the post-Walker cases directly conflict with our statement in Walker that the town's local law requiring prior written notice as to "parking field[s]" and "beach area[s]" was "flatly inconsistent with" GML § 50-e(4)'s plain language excluding the written notice requirement for locations outside the delineated six (Walker, 84 NY2d at 366). That argument ignores our holding in the post-Walker decision Woodson v City of New York (93 NY2d 936 [1999]).

In Woodson, the plaintiff sued for injuries arising out of his fall on a stairway that led from a sidewalk to a municipal park. This Court rejected the plaintiff's assertion that prior written notice of the defect was not a prerequisite to suit because a "stairway" was not listed as one of the six named locations in the statute. Specifically, this Court noted that the New York City Administrative Code's definition of "sidewalk" included the term "stairway," and concluded that the Administrative Code's notice requirement did not run afoul of GML § 50-e (4) because a stairway "functionally fulfills the same purpose" as a standard sidewalk, save for the fact that the former is "vertical instead of horizontal" (Woodson, 93 NY2d at 937, 938).

The parking lot here serves the "functional purpose" of a "highway," which Vehicle and Traffic Law § 118 broadly defines as "[t]he entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel." It was owned and maintained by the Village and was accessible to the general public for vehicular travel. As a result, the Village was entitled to notice and an opportunity to correct any defect before being required to respond to any claim of negligence with respect thereto. This holding recognizes that municipalities, which are "not expected to be cognizant of every crack or defect within [their] borders, will not be held responsible for injury from such defect unless given an opportunity to repair it" (Gorman v Town of Huntington, 12 NY3d 275, 279 [2009]).

The Village, through the testimony of its representative, met its burden of establishing that it did not receive prior written notice of the icy condition, thereby shifting to plaintiff the burden of demonstrating either that a question of fact existed in that regard or that one of the Amabile exceptions applied. Plaintiff never contested the Village's proof that it had not received prior written notice of the defect, asserting, instead, that such notice was unnecessary. Moreover, plaintiff never raised the "special benefit" exception and, to the extent that plaintiff contends that the Village's snow removal operations created the icy condition that caused plaintiff to fall (see San Marco v Village/Town of Mount Kisco, 16 NY3d 111, 118 [2010]), the Appellate Division properly concluded that the opinion of plaintiff's expert engineer was speculative, as it was premised on an inspection conducted, and photographs taken, of the parking lot over two years after plaintiff's fall.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the certified question should not be answered ...

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