Dalton v. City of Saratoga Springs

• Decision Date: 18 November 2004
• Docket Number: 95701.
• Citation: Dalton v. City of Saratoga Springs, 784 NYS2d 702, 12 AD3d 899, 2004 NY Slip Op 8293 (N.Y. App. Div. 2004)
• Parties: PETER P. DALTON et al., Appellants, v. CITY OF SARATOGA SPRINGS, Respondent.
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 899

784 N.Y.S.2d 702

2004 NY Slip Op 08293

PETER P. DALTON et al., Appellants, v.CITY OF SARATOGA SPRINGS, Respondent.

95701.

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 18, 2004.

Appeal from an order of the Supreme Court(Nolan, Jr., J.), entered September 4, 2003 in Saratoga County, which granted defendant's motion for summary judgment dismissing the complaint.

Crew III, J.P.

On December 31, 2001, while en route to a First Night celebration in the City of Saratoga Springs, Saratoga County, plaintiffPeter P. Dalton tripped and fell on a cracked portion of the public sidewalk located between Congress Park and Broadway near Spring Street.Dalton was transported to a local hospital and thereafter underwent surgery and physical therapy for a fractured kneecap.Dalton and his spouse timely filed a notice of claim and subsequently commenced this action against defendant alleging, inter alia, that defendant was negligent in its maintenance of the subject sidewalk.Following joinder of issue but prior to any discovery, defendant moved for summary judgment dismissing the complaint.Supreme Court granted defendant's motion, finding that the lack of prior written notice of the alleged defect, as required by Saratoga Springs City Charter§ C-55, was a complete bar to plaintiffs' action.This appeal by plaintiffs ensued.

Preliminarily, we reject defendant's assertion that this appeal should be dismissed due to plaintiffs' failure to serve defendant with the notice of appeal as required by CPLR 5515 (1).While it is true that a complete failure to follow the procedures set forth in CPLR 5515 indeed deprives this Court of jurisdiction to entertain an appeal (seeMatter of Malik v Coughlin, 127 AD2d 948, 949[1987]), where, as here, the appellant timely files the notice of appeal in the appropriate court and there is no evidence that the opposing party has been prejudiced by the lack of service, we have found such omission to be harmless error (seeMorrison v Piper,160 AD2d 1066, 1067 n 2[1990], revd on other grounds77 NY2d 165[1990];Carp v Marcus, 138 AD2d 775, 776[1988]).Accordingly, we will proceed to the merits of the appeal.

Based upon our review of the record as a whole, including the parties' post argument submissions, we agree that the lack of prior written notice is fatal to plaintiffs' claim and, accordingly, affirm Supreme Court's order granting defendant's motion for summary judgment dismissing the complaint.Saratoga Springs City Charter§ C-55 provides, in relevant part, as follows: "No civil action shall be maintained against the city for damages or injuries to person or property sustained in consequence of any . . . sidewalk . . . being out of repair, unsafe, dangerous or obstructed . . . , unless it appears that written notice of the defective, unsafe, dangerous or obstructed condition . . . was actually given to the Commissioner of Public Works and there was a failure or neglect within a reasonable time after the giving of such notice to repair or remove the defect, danger or obstruction complained of . . . , or the place otherwise made reasonably safe."The same provision requires defendant to maintain an index of any such written notice received, together with the date of receipt of such notice, the nature and location of the defect or condition specified and the name and address of the complainant.Where, as here, a municipality has enacted a prior written notice statute, it cannot be held liable for a dangerous or defective thoroughfare or sidewalk in the absence of such written notice (seePoirier v City of Schenectady,85 NY2d 310, 313-314[1995];Lifer v City of Kingston, 295 AD2d 695, 696[2002]).In this regard, the Court of Appeals has recognized "only two exceptions to the statutory rule requiring prior written notice, namely, where the locality created the defect or hazard through an affirmative act of negligence and where a `special use' confers a special benefit upon the locality"(Amabile v City of Buffalo, 93 NY2d 471, 474[1999][citation omitted];seePoirier v City of Schenectady, supra at 314-315;see alsoHendrickson v City of Kingston,291 AD2d 709[2002], appeal dismissed and lv denied98 NY2d 662[2002]).

In support of its motion for summary judgment, defendant submitted the affidavit of its Deputy Commissioner of Public Works, who averred that a review of the relevant records revealed that no written notice of any defect was received with regard to the subject sidewalk, thereby shifting the burden to plaintiffs to either raise a question of fact as to the required written notice or demonstrate the availability of a recognized exception.This plaintiffs failed to do.

As to the issue of written notice, counsel for plaintiffs averred that he reviewed the records of defendant's Department of Public Works and located work order No. 393, stating "Congress Pk ES of Park has a terrible sidewalk & also along WS."¹Plaintiffs' reliance upon this document is misplaced.As a starting point, there is no...