Akley v. Clemons

• Decision Date: 13 March 1997
• Citation: 655 N.Y.S.2d 149,237 A.D.2d 780
• Parties: Mary E. AKLEY et al., Respondents-Appellants, v. Lisa A. CLEMONS et al., Respondents, and Town of Potsdam, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 149

655 N.Y.S.2d 149

237 A.D.2d 780

Mary E. AKLEY et al., Respondents-Appellants, v. Lisa A. CLEMONS et al., Respondents and Town of Potsdam, Appellant.

Supreme Court, Appellate Division,

Third Department.

March 13, 1997.

Conboy, McKay, Bachman & Kendall (Edward A. Gibson, of counsel), Watertown, for Appellant.

Robert J. Sassone, Norwood, for Respondents-Appellants.

Isserlis & Sullivan P.C. (John E. Dorfman of Bohl, Della Rocca & Dorfman, Albany, of counsel), Bethpage, for Lisa Clemons, Respondent.

Clements & Ducharme P.C. (Mahlon T. Clements, of counsel), Canton, for Clayton Hewes and another, Respondents.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and CARPINELLO, JJ.

CARDONA, Presiding Justice.

Appeal from an order of the Supreme Court (Demarest, J.), entered June 7, 1996 in St. Lawrence County, which granted a motion by defendants Clayton Hewes and Connie M. Hewes for summary judgment dismissing the complaint against them and denied defendant Town of Potsdam's cross motion for summary judgment dismissing the complaint against it.

On August 12, 1993, plaintiff Mary E. Akley (hereinafter Akley) was driving in a westerly direction along Judson Street Road in the Town of Potsdam, St. Lawrence County, when she came over the crest of a hill and struck a small dog which had wandered into the road. Plaintiff stopped and exited her vehicle to render assistance to the dog which was lying in the center of the road. The dog, which had not been tethered or leashed, was owned by defendants Clayton Hewes and Connie M. Hewes, who lived nearby on Judson Street Road. The Heweses came out to the accident scene and Connie Hewes left her husband and Akley by the dog and started walking east up to the top of the grade to stop traffic. At that time, a car driven by defendant Lisa A. Clemons came over the crest of the hill and struck Akley. Clemons testified at her examination before trial that she applied her brakes as soon as she saw Akley but could not avoid hitting her.

Akley and her husband commenced this personal injury and derivative action against Clemons, the Heweses and defendant Town of Potsdam. Specifically, plaintiffs alleged that Clemons was negligent in the operation of her vehicle, the Heweses were negligent in failing to restrain their dog and the Town was negligent in failing, inter alia, to maintain the road properly, to post proper warning signs regarding the hill or to reduce the speed limit in that area.

The Heweses moved to dismiss plaintiffs' complaint against them for failure to state a claim pursuant to CPLR 3211(a)(7) and for summary judgment. The Town cross-moved for summary judgment. Supreme Court granted the Heweses' motion and denied the Town's cross motion. The Town and plaintiffs appeal.

Citing plaintiffs' undisputed failure to plead and prove compliance with its prior written notice law ¹ (see, Good v. County of Sullivan, 198 A.D.2d 706, 707-708, 604 N.Y.S.2d 285), the Town contends that Supreme Court improperly denied its cross motion for summary judgment. Plaintiffs maintain, however, that their claims fall within certain established exceptions to the general rule requiring compliance with the prior notice law. Initially, with respect to plaintiffs' claim that the Town negligently failed to erect advance warning or reduced speed signs east of the crest, we note that the Court of Appeals has held that such a failure is not a "defective" condition within the meaning of prior written notice statutes (see, Alexander v. Eldred, 63 N.Y.2d 460, 467, 483 N.Y.S.2d 168, 472 N.E.2d 996; Doremus v. Incorporated Vil. of Lynbrook, 18 N.Y.2d 362, 366, 275 N.Y.S.2d 505, 222 N.E.2d 376). Such statutes have been "strictly construed and refer 'to physical conditions in the streets or sidewalks * * * which do not immediately come to the attention of the [municipal] officers unless they are given actual notice thereof' " (Monteleone v. Incorporated Vil. of Floral Park, 74 N.Y.2d 917, 918, 550 N.Y.S.2d 257, 549 N.E.2d 459, quoting Doremus v. Incorporated Vil. of Lynbrook, supra, at 366, 275 N.Y.S.2d 505, 222 N.E.2d 376). Therefore, as to these claims, compliance with the Town's prior written notice law was excused and the Town's cross motion was properly denied.

Furthermore, the need for written notice was also obviated with respect to plaintiffs' allegations of active negligence in the form of negligent design and construction of the roadway. "[I]t is well settled that 'if the complaint alleges that the municipality created or caused the hazardous condition, prior written notice is not required to maintain the action' " (Good v. County of Sullivan, 198 A.D.2d 706, 708, 604 N.Y.S.2d 285, supra, quoting Hogan v. Grand Union Co., 126 A.D.2d 875, 876, 511 N.Y.S.2d 166; see, Merchant v. Town of Halfmoon, 194 A.D.2d 1031, 1032, 599 N.Y.S.2d 687). Despite the Town's assertion that it did not design or construct the Judson Street Road, testimony by its Superintendent of Highways that it maintained the roadway for many years coupled with the affidavit of plaintiffs' expert, John Serth, a licensed professional engineer, raises a question of fact as to whether the Town caused or created the dangerous condition allegedly presented by the crest (see, Merchant v. Town of Halfmoon, supra; Toohey v. Town of Brunswick, 191 A.D.2d 858, 595 N.Y.S.2d 132). ²

We reach a different conclusion regarding plaintiffs' vague allegations of passive negligence or nonfeasance on the part of the Town for failing to properly maintain the roadway with respect to the grade of the crest. We note that "[t]he primary effect of notice laws is to protect municipalities from liability for defects in streets * * * which are the result of nonfeasance" (Hogan v. Grand Union Co., 126 A.D.2d 875, 876, 511 N.Y.S.2d 166, supra ). Assuming, without deciding, whether plaintiffs' allegations state a claim for negligent maintenance, the Town's proof that it did not receive prior written notice constitutes a prima facie defense to this type of claim (see, Horton v. City of Schenectady, 177 A.D.2d 823, 576 N.Y.S.2d 437; see generally, Good v. County of Sullivan, supra; Merchant v. Town of Halfmoon, supra ). Although plaintiffs assert that they are excused from compliance because the Town had actual...