Charbonneau v. City of Cohoes

• Decision Date: 31 October 1996
• Citation: 232 A.D.2d 931,648 N.Y.S.2d 836
• Parties: Beverly M. CHARBONNEAU, Appellant-Respondent, v. CITY OF COHOES, Respondent, and Alfred J. Turcotte et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 836

648 N.Y.S.2d 836

232 A.D.2d 931

Beverly M. CHARBONNEAU, Appellant-Respondent, v. CITY OF COHOES, Respondent, and Alfred J. Turcotte et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division,

Third Department.

Oct. 31, 1996.

Edward Flink & Associates (Jay A. Smith, of counsel), Latham, for appellants.

Linnan Law Firm (John Shea, of counsel), Albany, for appellant-respondent.

Wertime, Robinson, Ries & Van Ullen P.C. (Joseph R. Cannizzaro, of counsel), Cohoes, for respondent.

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

WHITE, Justice.

Appeal from an order of the Supreme Court (Harris, J.), entered April 7, 1995 in Albany County, which, inter alia, granted a motion by defendant City of Cohoes for summary judgment dismissing the complaint and cross claims against it and denied a cross motion by defendants Alfred J. Turcotte and Patricia A. Turcotte for summary judgment dismissing the complaint and cross claims against them.

Plaintiff allegedly sustained personal injuries when she tripped and fell over a water line shut-off valve disk that was located within and protruded about one half of an inch above the public sidewalk owned by the defendant City of Cohoes that abutted 113-115 Remsen Street in the City of Cohoes, Albany County, premises owned by defendants Alfred J. Turcotte and Patricia A. Turcotte. This appeal follows Supreme Court's issuance of summary judgment to the City on the ground that plaintiff failed to comply with the prior written notice requirement contained in the City's Charter ¹ and its denial of the Turcottes' request for such relief. ² We shall first consider the arguments regarding the dismissal of plaintiff's complaint against the City.

In Walker v. Town of Hempstead (84 N.Y.2d 360, 618 N.Y.S.2d 758, 643 N.E.2d 77), the Court of Appeals construed General Municipal Law § 50-e (4) as limiting the reach of prior written notice provisions to defects occurring at six enumerated locations--streets, highways, bridges, culverts, sidewalks and crosswalks. Plaintiff and the Turcottes (hereinafter collectively referred to as appellants) argue that, since a waterline and its appurtenances are not one of these six enumerated locations, plaintiff's noncompliance with the City's written notice provision is immaterial. This argument is flawed because the shut-off valve disk was located within a covered location, i.e., a sidewalk, and allegedly made that location dangerous and unsafe. Accordingly, we find the City's written notice provision applicable to this case (see, Murphy v. County of Westchester, 228 A.D.2d 970, 644 N.Y.S.2d 598).

Appellants further argue that plaintiff was not required to provide prior written notice because this case falls within the special use exception to the general rule mandating prior notice. The record shows that the shut-off valve disk is a component part of the shut-off valve on the lateral water line serving the Turcottes' premises and that the valve's purpose is to enable the Turcottes to disengage water service into their property. Inasmuch as the shut-off valve does not confer any special benefit upon the City or its citizens who use the sidewalk, we find appellants' argument unpersuasive (see, Poirier v. City of Schenectady, 85 N.Y.2d 310, 315, 624 N.Y.S.2d 555, 648 N.E.2d 1318).

We likewise reject appellants' argument that the City had constructive notice of the allegedly defective condition of the shut-off valve disk as there is no proof establishing when the defect first appeared. Absent such evidence, it cannot be determined if the defect existed for a sufficient length of time prior to plaintiff's accident to have permitted the City's employees to have discovered and remedied it (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774). We further note there is no evidence that the City created the...