Calabrese v. City of Albany

• Docket Number: 535854
• Decision Date: 09 November 2023
• Citation: 2023 NY Slip Op 05641
• Parties: Henry E. Calabrese, Respondent-Appellant, v. City of Albany, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 05641

Henry E. Calabrese, Respondent-Appellant, v. City of Albany, Appellant-Respondent.

No. 535854

Supreme Court of New York, Third Department

November 9, 2023

Calendar Date:September 5, 2023.

Marisa Franchini, Corporation Counsel, Albany (Robert Magee of counsel), for appellant-respondent.

Harding Mazzotti, LLP, Albany (Peter P. Balouskas of counsel), for respondent-appellant.

Before: Lynch, J.P., Clark, Aarons, Pritzker and Ceresia, JJ.

Lynch J.P.

Cross-appeals from an order of the Supreme Court (Christina L. Ryba, J.) entered July 20, 2022 in Albany County, which denied plaintiff's motion for summary judgment on the issue of liability and denied defendant's cross-motion for summary judgment dismissing the complaint.

On July 26, 2019, plaintiff was operating his motorcycle on Lark Street in the City of Albany when he lost control after striking a depression in the road and fell. Plaintiff commenced this negligence action seeking damages for the injuries sustained in the accident. Following discovery, both parties filed motions for summary judgment centered on whether defendant received prior written notice of the alleged defect, as required by Code of the City of Albany § 24-1 (A) (hereinafter referred to as Local Law 24-1). Supreme Court denied both motions. Defendant appeals and plaintiff cross-appeals.

We affirm. Where "a municipality enacts a prior written notice statute, unless such notice is duly furnished, a plaintiff may not bring a civil action against [the] municipality for damages as the result of an injury sustained by reason of a defective... highway" (Pasternak v County of Chenango, 156 A.D.3d 1007, 1007 [3d Dept 2017] [internal quotation marks, ellipsis and citation omitted]). There are two recognized exceptions: where a plaintiff can demonstrate "that the municipality affirmatively created the defect through an act of negligence or that a special use resulted in a special benefit to the locality" (Yarborough v City of New York, 10 N.Y.3d 726, 728 [2008]; see Amabile v City of Buffalo, 93 N.Y.2d 471, 474 [1999]). For the affirmative negligence exception to apply, the work must" immediately result[ ] in the existence of a dangerous condition" (Oboler v City of New York, 8 N.Y.3d 888, 889 [2007]; see Yarborough v City of New York, 10 N.Y.3d at 728).

We agree with Supreme Court that Local Law 24-1 is enforceable and requires a showing that prior written notice of a defective street "was actually given to the Commissioner of General Services" (Code of the City of Albany § 24-1 [A]). As originally enacted in 1983, Local Law 24-1 required that notice of a dangerous condition be given to the Commissioner of Public Works. By amendments to the City Code in 1997 and 1998, defendant altered its departmental structure by creating a new Department of General Services (hereinafter DGS), consolidating all the functions of several departments, including the Department of Public Works (hereinafter DPW) (see Code of the City of Albany § 42-98 et seq.). All the personnel and property of DPW was transferred to DGS, which became "responsible for the maintenance and repair of all City streets" (Code of the City of Albany § 42-101). As part of this restructuring, DPW was abolished (see Code of the City of Albany § 42-104). However, in tandem therewith, defendant neglected to correspondingly amend Local Law 24-1 to reflect the restructuring, leaving the Commissioner of DPW as the designee for any prior written notice. ^[1]

In this context, plaintiff maintains that defendant should be estopped from enforcing Local Law 24-1, for service on the statutory designee would be an impossibility. We do not agree that estoppel should apply to bar defendant from asserting prior written notice as a defense. While prior written notice provisions "are always strictly construed" (Poirier v City of Schenectady, 85 N.Y.2d 310, 313 [1995]), it is manifest that interpreting Local Law 24-1 literally to compel service on a nonexistent officer would serve no meaningful purpose and ignore the full transference of authority to the DGS Commissioner in 1998 (see McKinneys Cons Laws of NY, Book 1, Statutes § 141, Comment at 282-283 [1971 ed] ["The court will not interpret a statute to require an impossibility"]). We decline to do so. For its part, defendant represents without contradiction that it has never endeavored to avoid liability through such a literal enforcement of Local Law 24-1.

Defendant maintains that prior communications concerning potholes made through an online reporting system identified as SeeClickFix (hereinafter SCF) do not qualify as prior written notice under Local Law 24-1 because they were not "sent to or received by the DGS Commissioner." We find this argument both troubling and unavailing. As a starting point, we readily recognize that a notice submitted electronically satisfies the "written" notice component of Local Law 24-1 (see Van Wageningen v City of Ithaca, 168 A.D.3d 1266, 1267 [3d Dept 2019]). We are also mindful that providing written notice of a street defect to a municipal agent other than the statutory designee does not satisfy the condition precedent criteria of a prior written notice provision (see Gorman v Town of Huntington, 12 N.Y.3d 275, 279-280 [2009] [where written notice was given to an entirely different municipal department than the statutory designee set forth in the prior written notice law at issue]). Here, the record demonstrates that defendant promoted SCF as an online platform to communicate complaints about defective streets. In particular, The Good Neighbor Handbook, which provides a guide to services provided by defendant, directs the Albany community to SCF as "a free and user-friendly mobile app and web tool that allows people to report... non-emergency neighborhood issues such as... potholes." Such complaints are administratively processed by the DGS front office staff and forwarded to a road division supervisor for an appropriate follow up. In his deposition, the DGS Commissioner described an SCF complaint as a "work order." The record shows that actions taken in response are added to the SCF document, which was the only system DGS used to record complaints about road defects. For his part, the Commissioner explained that he did not personally receive/review the SCF complaints but relied on departmental staff to do so.

In our view, the fact that defendant promoted the SCF program and the DGS Commissioner approved an internal departmental protocol for processing and responding to SCF complaints satisfies the "actually given to the Commissioner of General Services" requirement of Local Law 24-1 (compare Gorman v Town of Huntington, 12 N.Y.3d at 279). The Commissioner was clearly cognizant of the SCF complaint format, had an SCF account, and was charged with overseeing departmental operations in responding to the complaints. As a practical matter, a municipal commissioner is fully authorized to delegate the handling of such complaints to departmental staff - which is, effectively what was done here. We recognize that the Fourth Department reached a seemingly contrary conclusion in Horst v City of Syracuse (191 A.D.3d 1297, 1300-1301 [4th Dept 2021]), with respect to a "CityLine citizen reporting system," but decline defendant's invitation to adopt the reasoning of Horst under the distinguishing facts presented. Unlike the use of SCF complaints in Albany, the record in Horst indicates that the "CityLine complaints were maintained in an electronic format and were separate from the written notices kept in the office of the commissioner" (id. at 1301). We are mindful that the SCF complaint form advises users that the "use of this system... does not constitute a... valid prior written notice as established under both state and local law." Enforcement of that qualifier, however, would allow de...