Doremus v. Incorporated Village of Lynbrook

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: CHRIST and RABIN, JJ., dissent was vote to reverse the order and deny the motion, with the following memorandum by CHRIST, J., in which RABIN
• Citation: Doremus v. Incorporated Village of Lynbrook, 269 N.Y.S.2d 55, 25 A.D.2d 749 (N.Y. App. Div. 1966)
• Decision Date: 04 April 1966
• Parties: Florence DOREMUS, Appellant, v. The INCORPORATED VILLAGE OF LYNBROOK, Respondent, and Margaret L. Ghilardi etal., Defendants.

Page 55

269 N.Y.S.2d 55

25 A.D.2d 749

Florence DOREMUS, Appellant, v. The INCORPORATED VILLAGE OF LYNBROOK, Respondent, and Margaret L. Ghilardi etal., Defendants.

Supreme Court, Appellate Division, Second Department.

April 4, 1966.

Ralph Berley, Massapequa, for appellant; Benjamin S. Blair, Massapequa, of counsel.

Patrick F. Adams, Mineola, for respondent; Joel P. Stolowitz, Mineola, of counsel.

Before UGHETTA, Acting P.J., and BRENNAN, HOPKINS, CHRIST and RABIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Nassau County, entered October 1, 1965, which dismissed the complaint as against defendant the Incorporated Village of Lynbrook on the ground that the complaint fails to state a cause of action (CPLR 3211, subd. (a), par. 7).

Order affirmed, without costs.

Plaintiff brought this action on the ground of negligence of the Village of Lynbrook in failing to have a traffic stop sign in proper repair, as a result of which an automobile collision occurred. The Village's motion to dismiss the complaint was granted for the specific reason that written notice was not given to it pursuant to section 341--a of the Village Law. That section provides in part, 'No civil action shall be maintained against the village for damages or injuries to person or property sustained in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk being defective, out of repair, unsafe, dangerous or obstructed * * * unless written notice of the defective, unsafe, dangerous or obstructed condition * * * was actually given to the village clerk * * *.'

No challenge is made to the power of the Legislature to require such written notice (MacMullen v. City of Middletown, 187 N.Y. 37, 45--47, 79 N.E. 863, 865--866, 11 L.R.A.,N.S., 391). The issue raised is whether an unrepaired stop sign is within the ambit of the statute.

The terms 'defective' and 'dangerous' as used in statutes imposing liability on public authorities for maintenance of highways and streets relate to conditions which render the road not reasonably safe for its intended purpose, which is public travel thereon (Whitney v. Town of Ticonderoga, 127 N.Y. 40, 44, 27 N.E. 403; Schmitt v. City of Syracuse, 229 N.Y. 161, 128 N.E. 119, 24 A.L.R. 763, cf. Cleveland v. Town of Lancaster, 239 App.Div. 263, 266, 267 N.Y.S. 673, 676, affd. 264 N.Y. 568, 191 N.E. 568; 40 C.J.S. Highways § 254, subd. b). There can be little doubt that a failure to maintain a proper warning sign renders a highway defective, unsafe and dangerous (Canepa v. State of New York, 306 N.Y. 272, 117 N.E.2d 550; Robinson v. State of New York, 38 Misc.2d 229, 237 N.Y.S.2d 601, affd. 19 A.D.2d 946, 252 N.Y.S.2d 329; 40 C.J.S. Highways § 262). We hold, therefore, that the complaint was properly dismissed.

UGHETTA, Acting P.J., and BRENNAN and HOPKINS, JJ., concur.

CHRIST and RABIN, JJ., dissent was vote to reverse the order and deny the motion, with the following memorandum by CHRIST, J., in which RABIN, J., concurs:

I do not believe that a village may defend itself against negligence in failing to keep a stop sign in good working order and in failing to repair it, upon the ground that written notice of the defect in the sign pursuant to section 341--a of the Village Law was not given. Except for that section, there is no question that this defense would not be available.

The section requires prior written notice of the existing defective...