Bochner v. Town of Monroe

• Decision Date: 06 February 2019
• Docket Number: 2017–06423,Index No. 8529/14
• Citation: Bochner v. Town of Monroe, 169 A.D.3d 631, 93 N.Y.S.3d 136 (N.Y. App. Div. 2019)
• Parties: Henny BOCHNER, Respondent, v. TOWN OF MONROE, Defendant, Village of Kiryas Joel, Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 631

93 N.Y.S.3d 136

Henny BOCHNER, Respondent,

v.TOWN OF MONROE, Defendant,Village of Kiryas Joel, Appellant.

2017–06423

Index No. 8529/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 9, 2018

February 6, 2019

Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. (Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. [Christine Gasser ], of counsel), for appellant.

Herschel Kulefsky (Ephrem J. Wertenteil, New York, NY, of counsel), for respondent.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JEFFREY A. COHEN, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Village of Kiryas Joel appeals from an order of the Supreme Court, Orange County (Victor G. Grossman, J.), dated April 24, 2017. The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In August 2013, the plaintiff allegedly was injured in the Village of Kiryas Joel when she stepped off the curb into a pothole in the roadway of Carter Lane. She commenced this action against the Village and the Town of Monroe, which had entered into an agreement with the Village to repair defects in the Village's roadways. After discovery, the Village moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. The Village contended that it did not have prior written notice of the alleged defect and, thus, could not be held liable for injuries caused by the alleged defect (see Code of the Village of Kiryas Joel [hereinafter Village Code] § 117–3). The Supreme Court denied the Village's motion, and the Village appeals.

"A municipality that has enacted a prior written notice statute may not be subjected to liability for injuries caused by a defective condition in a sidewalk unless it either has received written notice of the defect or an exception to the written notice requirement applies" ( Monaco v. Hodosky, 127 A.D.3d 705, 706, 7 N.Y.S.3d 197 ; see Amabile v. City of Buffalo, 93 N.Y.2d 471, 474, 693 N.Y.S.2d 77, 715 N.E.2d 104 ; Barnes v. Incorporated Vil. of Port Jefferson, 120 A.D.3d 528, 529, 990 N.Y.S.2d 841 ; Simon v. Incorporated Vil. of Lynbrook, 116 A.D.3d 692, 983 N.Y.S.2d 308 ). Here, pursuant to section 117–3 of the Village Code, no civil action could be maintained against the Village for injuries arising from a sidewalk defect unless prior written notice of the defect had been given either to the Village Clerk or to the Village Superintendent of Public Works.

In support of its motion, the Village submitted evidence that itself demonstrated the existence of triable issues of fact as to whether it had received the requisite prior written notice of the alleged defect. This evidence established that in the weeks before the plaintiff allegedly was injured, an officer designated by the Village Code as a recipient of written notice, the Village Superintendent of Public Works, himself drafted two worksheets detailing defects in the roadway of Carter Lane. Additionally, the Village submitted evidence that the Village Superintendent of Public Works emailed those worksheets to the Village Clerk—the other officer designated under the ...