Barry v. Niagara Frontier Transit System, Inc.

• Decision Date: 20 December 1974
• Citation: Barry v. Niagara Frontier Transit System, Inc., 364 N.Y.S.2d 823, 35 N.Y.2d 629, 324 N.E.2d 312 (N.Y. 1974)
• Parties: , 324 N.E.2d 312 Dorothy BARRY et al., Respondents, v. NIAGARA FRONTIER TRANSIT SYSTEM, INC., Defendant, and Third-Party Plaintiff-Appellant, Village of Kenmore, Third-Party Defendant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 823

364 N.Y.S.2d 823

35 N.Y.2d 629, 324 N.E.2d 312

Dorothy BARRY et al., Respondents, v.NIAGARA FRONTIER TRANSIT SYSTEM, INC., Defendant, and Third-Party Plaintiff-Appellant, Village of Kenmore, Third-Party Defendant-Respondent.

Court of Appeals of New York.

Dec. 20, 1974.

R. William Larson and Michael J. Hutter, Buffalo, for defendant and third-partyplaintiff-appellant.

Roger A. Olson and Andrew D. Merrick, Buffalo, for third-party defendant-respondent.

JASEN, Judge.

In this personal injury action, defendantNiagara Frontier Transit System, Inc. seeks apportionment of responsibility and indemnification from third-party defendant, the Village of Kenmore.

The complaint in the prime action alleges that the plaintiffDorothy Barry, was injured while alighting at a bus stop in the Village of Kenmore from a bus operated by the defendant bus company.The action is premised on the grounds of negligence of the bus company in operating the bus and failing to give the plaintiff, Dorothy Barry, a safe place to alight.

The third-party complaint alleges that if the plaintiff sustained personal injuries in the manner claimed by her in the complaint, and if the bus company is found liable to the plaintiffs, then the bus company, on the basis of apportionment of responsibility for the alleged accident, is entitled to indemnification from the village for all or part of any judgment that the plaintiffs may recover against the bus company.

Special Term, relying on former section 341--a of the Village Law,¹Consol.Laws, c. 64, dismissed the third-party complaint upon the ground that the complaint fails to state a cause of action.The Appellate Division affirmed on the opinion at Special Term.We granted leave to appeal to consider the applicability of the notice requirement as set forth in section 341--a of the Village Law in the context of a third-party complaint for apportionment pursuant to Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288.

Former section 341--a of the Village Law(now CPLR 9804)² specifically states that no action shall be maintained against a village for personal injuries caused by a dangerous condition in a street or sidewalk unless the village was actually given written notice of the condition and there was a failure or neglect within a reasonable time after the receipt of such notice to correct such defect.While it is conceded that no prior written notice of defect was given to the village prior to the accident which the plaintiff alleges occurred on September 10, 1968, the bus company argues that there is no need to comply with the statute as to prior notice since the third-party action for apportionment of responsibility and indemnification 'is not an action (falling) within the purview of'this statute.Expressed another way, the argument is that since section 341--a is limited solely to tort actions, it is not applicable to the instant action for apportionment, which is, in essence, an equitable action for contribution.

We do not agree.The rule of apportionment, we stated in Rogers v. Dorchester Assoc., 32 N.Y.2d 553, 564, 347 N.Y.S.2d 22, 31, 300 N.E.2d 403, 409, 'applies when two or more tort-feasors have shared, albeit in various degrees, in the responsibility by their conduct or omissions in causing an accident, In violation of the duties they respectively owed to the injured person.'(Emphasis supplied.)

What duty of care did the village owe to the plaintiff at the time of her alleged injury?It was the duty to repair or remove any defect complained of within a reasonable time after written notice of the dangerous condition was actually given to the village.Since it is conceded that no prior notice of the dangerous condition was given to the village, no cause of action accrued against the village.To say that a third-party apportionment action may be brought against the village would permit indirectly what could not be done directly by the plaintiffs themselves by reason of their failure to allege compliance with the requirement of notice.

In...